New Guidelines on 'Gagging Clauses'

New Guidelines on 'Gagging Clauses'

  • Date: Tuesday 22nd October 2019
  • PDF: Download


Sometimes, the breakdown of an employment relationship calls for honest conversations and often HR professionals and solicitors recommend settlement agreements, to painlessly end a contract.

Settlement agreements outline several clauses for both the employer and employee in return for:

  • A sum of money for compensation of loss of their job for the employee
  • The assurance that no legal claims will be brought against the employer

Settlement agreements can be a great way to walk away with dignity and save time and money in the process.

However, some employers have exploited settlement agreements by adding Non-Disclosure Agreements (NDAs) that effectively stop the employee from making protected disclosures of any kind. NDAs also exist on their own, with an increasing number of organisations issuing them as addendums to their general terms and conditions of employment.

Recent news has confirmed the pitfalls of this practice: employees are often forced to abide by the imposed ‘gagging order’ and don’t feel that they can bring genuine claims against the employer that could often result in criminal charges. Reports included incidents of sexual harassment, assault and improper practice under financial authority rules.

The European Court of Human Rights has now issued new guidance to ensure that employees are not being prevented from exercising their right to free judgement. They are advising employers to exclude any claims relating to discrimination in their NDAs, if they form part of their employment terms.

Before offering a settlement agreement, any outstanding grievances must be thoroughly investigated, to ensure that any claims have been resolved before a severance deal is offered.

Employers not following this guidance, could find themselves accused of breaching human rights, should a former (or current) employee bring a claim against them.

Source: Manuela Grossmann


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