NDAs: Legal framework must be improved
The legal framework can be improved to stop the use of non-disclosure agreements (NDAs)* to hide matters of public interest, the Law Society of England and Wales said today.
In its response to a call for evidence, the Law Society called for the legal framework and enforcement processes to be improved so that NDAs do not discourage matters of public interest, such as some whistleblowing cases, from being reported. The Society also said it does not think it is right to restrict a solicitors’ ability to advise their clients on the law.
“We urge the government to commit to making it harder for NDAs to be misused when they involve settling issues around workplace harassment or discrimination,” Law Society President Lubna Shuja said.
“The government needs to fulfil its promise to legislate so that no provisions in a confidentiality clause can prevent disclosures to the police, health, legal or care professionals. This will make it harder to bury unacceptable behaviour.”
On the role of solicitors in drafting NDAs, Lubna Shuja said: “Solicitors – whether acting for an employee or an employer – are obliged by their Code of Conduct to act in their clients’ best interests.
“For an agreement to work well, it must be understood by all parties. Confidentiality clauses should be clear. It is essential for all parties to understand and be satisfied with what they are agreeing to.
“Solicitors already have to abide by the SRA’s Warning Notice. Those who advise on NDAs know they must meet good ethical standards otherwise they could face enforcement measures for non-compliance with legal requirements.”
On the separation of individual compensation from the public good, Lubna Shuja concluded: “If there is a public interest aspect to problems happening within an organisation then a regulator or a labour market enforcement agency should investigate these.
“Someone who suffers harassment must still be able to seek compensation for the harm they’ve experienced. That person should not be expected to address an organisation’s failings.
“If the case has a public interest aspect, it should be enforced by a separate body that encourages work environments to be free from harassment.”
Notes to editors
* A valid NDA is an individual agreement between two or more parties, which all parties have entered into willingly.
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