By Penny Thew -
- Confidentiality and non-disparagement clauses (also referred to as ‘non-disclosure agreements’) have historically been a central feature of the resolution of workplace disputes involving bullying and/or harassment allegations, with their scope and any exclusions negotiated to avoid recurring disputation.
- The sharp focus of regulators on workplace bullying and harassment, recently exemplified by the SafeWork NSW ‘Psychological Health and Safety Strategy 2024-2026’, highlights the significant risks of ongoing or recurring workplace disputation.
- This article examines the risks of failing to negotiate and agree upon appropriate non-disclosure agreements in the settlement of workplace disputes, where one or all parties continue to publicly generate disputed allegations, potentially leading to recurring disputation, liability and litigation.
On 6 March 2024 the University of Sydney Law School, in tandem with the Redfern Legal Centre and the Human Rights Law Centre, published Let’s talk about confidentiality: NDA use in sexual harassment settlements since the Respect@Work Report (‘Confidentiality Report’), which examined the use of non-disclosure agreements (‘NDAs’) following the Australian Human Rights Commission’s publication in December 2022 of the Guidelines on the Use of Confidentiality Clauses (‘AHRC Guidelines’).
The AHRC Guidelines provides best practice guidance when considering whether, and how, to use NDAs: recommending negotiation and consideration of NDAs on a case-by-case basis, rather than a blanket ban or use, and a trauma-informed approach in respect of all parties who make allegations (at 2 and 9).
