This is in light of new government proposals that would ensure such agreements could not prevent people from reporting sexual harassment or discrimination to the police.

The proposals, released by the Department for Business, Energy & Industrial Strategy yesterday, also include a measure that ensures workers agreeing to NDAs can receive independent legal advice on their limitations.

Commenting on what this all means for recruitment agencies, Dr Sybille Steiner, partner at law firm Irwin Mitchell, told Recruiter the government is particularly worried about the use of NDAs to silence victims of workplace sexual harassment, so recruiters and employers must remain ahead of the curve by taking sexual harassment seriously and addressing any concerns “swiftly and fairly”.

“This will prevent unpleasant, time-consuming and expensive claims, which are likely to attract press attention and cause reputational damage. When using settlement agreements in the employment context, recruiters and employers should, however, ensure that the confidentiality clause is not a ‘gagging clause’ that prevents victims from speaking up.”

Meanwhile Stephen Jennings, partner and solicitor at Tozers Solicitors, told Recruiter agencies should consider the following factors should they come across a worker asked to sign an NDA.

• Advise the worker to get independent legal advice (and ask the client to reimburse them for doing so)
• Where there are concerns, talking frankly to the client about the NDA and whether this is appropriate – many clients routinely ask for NDAs without considering all the circumstances.

“An agency that is seen to be facilitating an inappropriate NDA could face a legal claim and adverse publicity. It is important to remember though that NDAs can often be both lawful and beneficial to workers who are properly compensated for signing them. The key point is they should not stop the worker from reporting illegal activity or wrongdoing or seeking appropriate advice,” Jennings added.

But as Jacqueline McDermott, consultant solicitor at Keystone Law, pointed out the proposals are still at the consultation stage, which is due to run until 29 April: “It is not clear what form any new regulations will ultimately take or when they will be in force.

“While the proposals are to be welcomed, in that they may prevent serial abusers continuing to abuse, a possible downside is they may make it more difficult to settle certain types of potential claims a worker may have (eg. discrimination or harassment) at any early stage. Some employers use settlement agreements specifically to ensure the details of any potential claims are not made public, which they may no longer be able to do. Employers may therefore be less willing to settle potential claims under the new proposals and the worker may be forced to pursue lengthy and expensive claims, which may act as a deterrent.

“In respect of what recruiters should be doing, assuming any new regulations mirror the proposals, as with all things raising awareness among staff about what is and is not permitted will be very important. In addition, recruiters should review their existing agreements to ensure they comply with the new proposals.”

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