International Employment Lawyer
In the UK, Philip Cameron tells IEL that, even without a ban, the legal landscape can still be hostile towards NDAs in these situations.
“There is already a lot of controversy around using NDAs in all sorts of circumstances,” he says. “The Solicitors Regulation Authority (SRA), for example, has issued a warning notice in relation to the use of NDAs and the advice that lawyers give in relation to them.”
“NDAs are difficult to enforce in any event, and in some circumstances – where there is criminal conduct, for example – they will not be valid.”
He adds: “Care needs to be taken with NDAs in all situations – the SRA’s warning notice regarding their use applies to all sort of situations, including those involving sexual misconduct.”
“NDAs can’t be used to prevent disclosure to the police or a regulator, or where someone is making a protected disclosure. So, their use has become really quite limited.”
Cameron continues: “Perhaps the best way to prepare for a potential ban is to comply with the current legal duty to take reasonable steps to prevent sexual harassment in the workforce.”
“Employers need to have clear policies in place, give meaningful training, enforce their policies, and live and breathe the values that are expressed in these policies.”
