Keeping up to date
We take seriously our responsibility to keep you up to date so that you can use changes in employment law to commercial advantage. By understanding and interpreting the latest case law and legislation we can deliver updates to you that are concise and usable. With imagination, we are able to ensure that developing law can be used to allow you to achieve commercial solutions, cost effectively and expediently.
A series on settlement – can you really ask exiting employees to keep quiet?
A clause in a settlement agreement asking the employee not to disclose the fact, existence or terms of the agreement is a common feature. But do those clauses really work?
Drafted well, the confidentiality clause is lawful and reasonable. But to achieve a workable agreement the wording needs to take into account the following:
Protected disclosures
Make clear that nothing in the confidentiality clause prevents the exiting employee from ‘blowing the whistle’. If it looks like you’re attempting to stop them from blowing the whistle the clause and possibly the entire agreement will be unenforceable.
Likewise, don’t expect to be able to prevent the exiting employee from working with authorities, including the police, about the matters covered by the agreement (even about any already known claims, grievances or issues).
Carve out exceptions
Make it clear that the exiting employee isn’t prevented from discussing or raising specific issues with you. Although there’s no legal requirement to do this, including wording along these lines helps with the enforceability of the wording.
Protecting well-being
Call out that exiting employees can speak about the terms of their agreements with professionals including medical, therapeutic, counselling, legal or financial support services.