Get in touch 0117 325 0526

Helpful new guidance from ACAS on NDAs

What do we already know?

We updated you in our July and August Newsletters on the Government’s consultations in relation to sexual harassment in 2019 (see here and here).  We also updated you in our November Newsletter on the Government’s response to the Women and Equalities Committee’s (WESC’s) report on the use of non-disclosure agreements (NDAs) in discrimination cases (available here).

The consultations and response to the WESC report proposed legislative changes to curb the misuse of NDAs and, pending this, the Government directed both the Equalities and Human Rights Commission (EHRC) and ACAS to produce guidance on NDAs.

The EHRC’s guidance on NDAs was published in October 2019 (see our update here) and, last month, the EHRC also issued technical guidance on sexual harassment (see our update here).

We are expecting legislation in relation to the use of NDAs in due course.

What’s new?

The Advisory, Conciliation and Arbitration Service (ACAS) has also now published guidance, to provide greater clarity on the law and good practice around the use of confidentiality clauses or NDAs.

In contrast to the EHRC’s guidance (which was only concerned with the use of NDAs in discrimination cases), the ACAS guidance acknowledges their application in a broader range of employment disputes. In so doing, the guidance distinguishes between such clauses used in a settlement agreement (or ACAS COT3 settlement) which seek to keep confidential the particular details of an agreement, and those which seek confidentiality for the very fact that an agreement has been made.

The ACAS guidance also identifies other potential uses of confidentiality clauses, for example in employment contract terms which aim to prevent an employee disclosing sensitive commercial information to third parties.

However, the new guidance makes it clear that NDAs must not be used to stop someone from:

The ACAS also guidance cautions against routinely using confidentiality clauses and recommends that employers first check:

If an employer still wishes to use an NDA then ACAS advice is that employers should:


Back to March 2020 newsletter.

Share this...

Review Solicitiors