Yesterday, the Equality and Human Rights Commission (EHRC) launched new guidance for employers on the use of confidentiality agreements or NDAs in discrimination cases. It follows recent reports on the use of confidentiality clauses by the Women and Equalities Select Committee, BEIS’s consultation paper earlier this year and the EHRC’s own 2018 report, ‘Turning the tables: ending sexual harassment at work’ which explored the many reasons why workers may not feel able to speak up about discrimination. It also made clear that the inappropriate use of confidentiality agreements are part of the problem.
The guidance is intended to provide employers and workers with clarity on the law surrounding confidentiality agreements, along with good practice recommendations when using confidentiality agreements.
The guidance can be found here and a summary of the key dos and don’ts are set out below.
If you have not done so already, it is now a very good time to review your precedent settlement agreements and consider your approach in relation to confidentiality more generally. Get in touch with us on 020 7600 8080 if you would like to discuss further.
1) 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. 2) Don’t 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. 3) Don’t ever use a confidentiality agreement to stop employees from whistleblowing, reporting criminal activity or disclosing other information as required by law. 4) Do always give your worker time to read and fully understand the terms of a confidentiality agreement. 5) Do always give your worker a copy of the confidentiality agreement. 6) Do make sure the confidentiality agreement spells out the details of exactly what information is confidential. 7) Do monitor the use of confidentiality agreements in your workplace.