Catharine MacMillan, ‘Contracts and Equality: The Dangers of Non-disclosure Agreements in English Law’

ABSTRACT
This paper is concerned with the interaction between the principle of equal treatment and non-disclosure agreements in English law. The common use of non-disclosure agreements (also referred to as ‘confidentiality clauses’ or ‘gagging clauses’) as a term in contracts settling possible claims in which harassment or discrimination were alleged came to public prominence in England following the #MeToo movement. There has, though, been little consideration of the enforceability of these non-disclosure agreements as a matter of contract law and the impact of non-disclosure agreements upon equality. This paper examines the legal enforceability of these agreements as a matter of English contract law. It is argued that non-disclosure agreements, designed to obtain silence, work to impede the equality of women. English contract law provides few protections from the potential abuse that can arise from non-disclosure agreements.

Catharine MacMillan, Contracts and Equality: The Dangers of Non-disclosure Agreements in English Law, European Review of Contract Law, https://doi.org/10.1515/ercl-2022-2041. Published by De Gruyter 15 June.

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