Professional self-protection with an NDA

Verora

Hypothetical question...
An NDA for a Settlement Agreement prevents disclosing why the employee ceased working for the employer - in order to protect the employer.
What clause/schedule/wording can be used in the SA that protects the professional reputation of the employee?
Stating that the employee has just 'ceased working for the company' could imply they've been sacked. I wish to protect the professional reputation of an employee that's been made redundant whilst making it clear they're not in breach of contract.
Has anyone else had a similar 'public' statement made, e.g. in the Reference Schedule that typically just confirms dates of employment only?

MattMattMattUK

Verora said:

Hypothetical question...
An NDA for a Settlement Agreement prevents disclosing why the employee ceased working for the employer - in order to protect the employer.
What clause/schedule/wording can be used in the SA that protects the professional reputation of the employee?
Stating that the employee has just 'ceased working for the company' could imply they've been sacked. I wish to protect the professional reputation of an employee that's been made redundant whilst making it clear they're not in breach of contract.
Has anyone else had a similar 'public' statement made, e.g. in the Reference Schedule that typically just confirms dates of employment only?

Almost all references now only include dates of employment, a few will contain job titles but very rarely more than that. In some professions they are required to declare a reason, redundancy, as a result of disciplinary procedures, during disciplinary procedures etc. but that is only for certain professions. 

As for a pubic statement of why an employee left, not a chance unless they are a senior employee leaving in disgrace. 

MyRealNameToo

Verora said:

Hypothetical question...
An NDA for a Settlement Agreement prevents disclosing why the employee ceased working for the employer - in order to protect the employer.
What clause/schedule/wording can be used in the SA that protects the professional reputation of the employee?
Stating that the employee has just 'ceased working for the company' could imply they've been sacked. I wish to protect the professional reputation of an employee that's been made redundant whilst making it clear they're not in breach of contract.
Has anyone else had a similar 'public' statement made, e.g. in the Reference Schedule that typically just confirms dates of employment only?

No personal experience but have seen agreements that included the text that should be used if the employer is asked questions about the mechanism/why the employee left and chooses to answer the question or the agreement states that employer won't answer the question. 

Problem has been however the reason it was being talked about was that the random person in HR who took the call for a verbal reference hadn't seen the agreement so simply answered based on how it was coded in the system. 

Many dont answer these types of question by default though and limit responses to dates of employment and job title on leaving. 

Verora

Thank you for your replies. In this instance it is simply a redundancy due a reduction in the need for that engineering discipline. The company is naturally protecting their reputation with the NDA, but there is no protection for the professional reputation of the redundant employee.

Simply answering "I left the company and cannot state the reason" could be assumed to be "I got sacked for some kind of misconduct". I was rather hoping there have been instances where "performed within the terms of the contract" was used (or similar wording) that left the leaver's professional reputation untarnished.

Andy_L

Why would an employee accept such a clause? 

If they cannot say "redundancy due a reduction in the need for that engineering discipline" then they can't claim JSA/redundancy insurance


What does the employer gain by imposing such a clause? If it was to hide internal incompetence at senior levels you could understand it but "reduction in the need for that engineering discipline" is hardly reputationally damaging.
Indeed they may have legal requirements to inform Unions and/or the government why redundancies are happening

Verora

Andy_L said:

Why would an employee accept such a clause? 

If they cannot say "redundancy due a reduction in the need for that engineering discipline" then they can't claim JSA/redundancy insurance


What does the employer gain by imposing such a clause? If it was to hide internal incompetence at senior levels you could understand it but "reduction in the need for that engineering discipline" is hardly reputationally damaging.
Indeed they may have legal requirements to inform Unions and/or the government why redundancies are happening

"Why would an employee accept such a clause?" - because the settlement depends on the NDA.
"What does the employer gain by imposing such a clause?" - an assurance that the remaining workforce won't get spooked into finding alternative employment. 

Undervalued

Verora said:

Andy_L said:

Why would an employee accept such a clause? 

If they cannot say "redundancy due a reduction in the need for that engineering discipline" then they can't claim JSA/redundancy insurance


What does the employer gain by imposing such a clause? If it was to hide internal incompetence at senior levels you could understand it but "reduction in the need for that engineering discipline" is hardly reputationally damaging.
Indeed they may have legal requirements to inform Unions and/or the government why redundancies are happening

"Why would an employee accept such a clause?" - because the settlement depends on the NDA.
"What does the employer gain by imposing such a clause?" - an assurance that the remaining workforce won't get spooked into finding alternative employment. 

Exactly.

Both sides can ask for whatever clauses they like but it doesn't mean the other side will agree to them! Ultimately it comes down to the strength of their bargaining positions!

With genuine redundancy there is no need for a settlement agreement. If the post is genuinely redundant then the post holder's employment can be terminated just by paying the statutory entitlements. If the employer wants to exclude (almost) any possibility of an unfair dismissal claim then they can offer enhanced terms in exchange for a legally binding SA on agreed terms.

In practice, any restrictions on disclosing the reasons, references etc are only of so much value, as a refusal to discuss these matters with a prospective employer will obviously suggest that a SA is in place.

MyRealNameToo

Verora said:

Andy_L said:

Why would an employee accept such a clause? 

If they cannot say "redundancy due a reduction in the need for that engineering discipline" then they can't claim JSA/redundancy insurance


What does the employer gain by imposing such a clause? If it was to hide internal incompetence at senior levels you could understand it but "reduction in the need for that engineering discipline" is hardly reputationally damaging.
Indeed they may have legal requirements to inform Unions and/or the government why redundancies are happening

"Why would an employee accept such a clause?" - because the settlement depends on the NDA.
"What does the employer gain by imposing such a clause?" - an assurance that the remaining workforce won't get spooked into finding alternative employment. 

Then they have to weight up the value of the SA -v- the problems for future employment. 

Alternatively have a carve out in the NDA that disclosure is allowed purely for the purposes of job hunting. It would need to be a very closed network of competitors for someone finding out at interview that a person was made redundant end then deciding to run marketing campaign or PR against their competitor as a consequence. 

Verora

I wanted to post the conclusion in case anyone else is in a similar situation.

The employee was advised by their Solicitor that a new Schedule could be added to the SA entitled "Announcements". The wording of the announcement thanked the employee for their contribution over the years etc. The employers legal team approved it and the employee now feels they've preserved their professional reputation.