New Guidance – 2. EHRC Guidance on NDAs in Discrimination Cases

What do we already know?

We updated you in our August 2019 Newsletter (Government reforms (3): Response to Consultation on Confidentiality Clauses) that the Government has said that it will legislate to ensure that limitations on non-disclosure agreements (NDAs) are set out clearly in written statements of employment particulars and in settlement agreements.  The Government confirmed that although there would not be mandatory wording, it would work with regulators to produce guidance on NDAs .

What’s new?

The Equalities and Human Rights Commission (EHRC), at the Government’s request, has produced guidance (available here) on using NDAs in discrimination cases.

This guidance informs both employers and employees about the law around confidentiality agreements and when and how they can be used. It is intended to push back on those employers who routinely use confidentiality agreements when settling discrimination disputes.

The EHRC guidance includes the following tips for employers:

Do:

• Monitor the use of confidentiality agreements in your workplace.
• Always give your worker time to read and fully understand the terms of a confidentiality agreement.
• Always give your worker a copy of the confidentiality agreement.
• Make sure the confidentiality agreement spells out the details of exactly what information is confidential.

Don’t:

• Ever ask a worker to sign a confidentiality agreement as part of their employment contract which would prevent them from making discrimination claim against you in the future.
• Use a confidentiality agreement to prevent a worker from discussing a discriminatory incident that took place in their workplace unless, for example, the victim has requested confidentiality around their discriminatory experience.
• Ever use a confidentiality agreement to stop employees from whistleblowing, reporting criminal activity or disclosing other information as required by law.

Further guidance is expected to be published by ACAS and we’ll be sure to update you on this.