Q&As

In a settlement agreement that includes waiver of a sexual harassment claim, to what extent can non-disclosure agreements (NDAs) or confidentiality provisions be included in such a way that the individual bringing the claim is not gagged?

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Published on LexisPSL on 25/02/2021

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • In a settlement agreement that includes waiver of a sexual harassment claim, to what extent can non-disclosure agreements (NDAs) or confidentiality provisions be included in such a way that the individual bringing the claim is not gagged?
  • Sexual harassment
  • Non-disclosure agreements and confidentiality provisions

In a settlement agreement that includes waiver of a sexual harassment claim, to what extent can non-disclosure agreements (NDAs) or confidentiality provisions be included in such a way that the individual bringing the claim is not gagged?

The primary objective when entering into a settlement agreement is to ensure a binding and valid settlement of an employee's statutory employment claims. For information on the conditions regulating settlement agreements, see Practice Note: Settlement agreements in employment—legal requirements.

Sexual harassment

For information on sexual harassment claims under the Equality Act 2010, see the section of Practice Note: Harassment entitled: Conduct of a sexual nature and Rejection of, or submission to, harassing behaviour.

As set out in that Practice Note, harassment may also give rise to civil claims under the Protection from Harassment Act 1997, and criminal offences.

Non-disclosure agreements and confidentiality provisions

It is not one of the conditions regulating settlement agreements that a non-disclosure agreement (NDA) or confidentiality provision be included in a settlement agreement, and consideration should be given to whether such a provision is necessary.

Guidance on the use of NDAs and confidentiality provisions in settlement agreements can be found in Practice Note: Non-disclosure agreements (NDAs) and confidentiality provisions in employment.

In addition to existing legal requirements and considerations relating to the appropriate use of NDAs, a multitude of material has been published in relation to them by regulatory and other

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