New guidance calls time on irresponsible NDAs

Equality watchdog says there are ‘no more excuses’ for using confidentiality clauses in cases of discrimination or harassment

The UK’s equality watchdog has launched new guidance for employers on the use of non-disclosure agreements, in a bid stop their improper use in discrimination cases. 

The Equality and Human Rights Commission (EHRC) has said it is “calling time” on the improper use of confidentiality clauses, also known as non-disclosure agreements (NDAs) or ‘gagging’ clauses, to cover up sexual harassment, discrimination or bullying in the workplace.

Rebecca Hilsenrath, chief executive of the EHRC, said there were “no more excuses” for improper NDAs, adding: “Everyone should have the power to speak out about harassment and victimisation. Nobody should be silenced.”

When used legitimately, NDAs can be included in employment contracts to prevent an employee divulging sensitive information about the company or their role, and are often seen in settlement agreements following a dispute between an employer and employee. They can also be included at the request of the victim.

But the EHRC guidance advised that employers should never ask a worker to sign a confidentiality agreement that prevents them making a discrimination claim as part of their employment, and warned that an NDA should never prevent workers from discussing discriminatory incidents or making a protected disclosure.

Hilsenrath added: “Employers must take steps to prevent sexual harassment from happening in the first place. We believe that such a duty should be made mandatory for all employers.” 

The launch of the guidance is timed to coincide with the two-year anniversary of the #MeToo campaign entering the public eye, exposing the use of gagging clauses in high-profile sexual harassment cases.

Since the campaign started gaining momentum, the use of NDAs has been put under the spotlight both by campaign groups and a parliamentary inquiry, and in March 2019 the government proposed a tightening of the laws around confidentiality agreements to prevent misuse.

The CIPD is in favour of a standardisation of NDAs, but cautioned that an outright ban could be detrimental to employers. Rachel Suff, senior employment relations adviser at the CIPD, said: “NDAs have a legitimate reason for existing, protecting the confidentiality of the employees as much as the alleged perpetrator.”

The EHRC said in a statement: “[The guidance] also serves as a timely reminder for employers to update any out-of-date policies, such as those on bullying and harassment”.