In addition to the EHRC`s guidelines on the use of confidentiality agreements in discrimination cases, published in October 2019, ACAS published a 21-page guide entitled Confidentiality Agreements earlier this month on 10 February. 2. The Guidelines distinguish between clauses which are intended to keep certain details of an agreement confidential and more distressing types, which are also intended to keep confidential the fact that an agreement has been treated confidentially. Note that both types may be considered inappropriate depending on the circumstances. When an employer and a worker enter into an agreement to settle a dispute in the workplace, they may use an NDA to keep confidential one of the following conditions: when an employer unlawfully dismisses a worker (contrary to the contract) or commits another negative infringement, it is usually prevented from imposing restrictive agreements in the former worker`s employment contract. because they will disappear effectively. A potential problem lies in an employer`s choice to make a payment to an employee instead of termination (PILON) if there is no contractual right to do so in the contract. From a technical point of view, this is an infringement, so the contract is terminated and the employer can no longer invoke restrictive agreements. It is obvious that care must be taken to ensure that a PILON clause is included in the contract if the employer wishes to rely on it in the future. The good practice guidelines are not legally binding, but they are undoubtedly used by workers and their advisors to question the use of comprehensive confidentiality clauses in agreements to regulate discrimination rights. It remains to be seen how this will co-exist with future legislation. However, a number of remedies are available to employers in the event of non-compliance with confidentiality obligations after dismissal and other restrictions.
From a practical point of view, the first step before taking a formal legal action, depending on the nature and extent of the infringement, is often a letter from the employer (or his legal adviser) reminding the worker of his current obligations to the company after the dismissal and a separate letter addressed to the new employer reminding him of his obligations, not cause injury to the worker. or, in the case of a more serious potential infringement, a letter prior to the measure inviting the person and/or the new employer to refrain from any act, failing which further action will be taken. Single-use confidentiality agreements contain only obligations of one of the parties. This type of agreement is common when you are developing a new product or service and looking for potential suppliers or partners. 10. ACAS also points out that employers draw workers` attention to what is and is not allowed by confidentiality clauses in contracts or comparisons. Once employment comes to an end, the position changes with respect to confidential information….