More than two years on from the revival of the #MeToo movement, we continue to hear worrying stories about the role of non-disclosure agreements (NDAs) – also known as confidentiality clauses – in concealing sexual harassment allegations at work. But is the problem really to do with the existence of NDAs themselves, or is it more about the way they can, and in some instances have, been misused?
As much as the conversation has focused on the bad, it is worth remembering that NDAs are not always mired in controversy. For instance, confidentiality clauses can feature in employment contracts to protect sensitive commercial information and trade secrets acquired during an individual’s employment. Or, where a dispute has taken place, both parties may agree to a confidentiality clause simply to allow them to move on with their lives. Here, it can be mutually desired and beneficial. What’s key is that an appropriate level of transparency accompanies these clauses, in which all parties involved fully understand their purpose and meaning. And it is here that some NDAs fall short.
The narrative in the media has focused most on cases in which individuals facing allegations of misconduct have used their power to intimidate or silence others through the use of an NDA. This spotlight has also helped to uncover the untold damage these clauses can have on people in everyday workplace situations. Research by Pregnant Then Screwed, for example, found that more than 90 per cent of women who had signed an NDA after encountering pregnancy or maternity discrimination felt this was their only option, and 70 per cent said that signing had negatively affected their mental health.
The fact that these clauses are confidential makes it difficult to measure the full extent of the problem but, even where such scenarios of abuse fall into the minority, their gravity calls for a solution. Might this be in the form of potential upcoming legislation? Might we eventually see an outright ban? What can be done in the short term?
While of course every workplace situation is unique, I believe there are three key questions that should be asked before pursuing the route of an NDA:
Is it necessary? Both the use and wording of any NDA should be carefully considered. NDAs should only be used when appropriate rather than as a matter of course. Confidentiality clauses should also not be overly complex or unnecessarily restrictive, and explain in clear, plain English, its meaning and limitations, leaving no room for ambiguity. Always consider what you are looking to achieve and the potential consequences of using an NDA, not only on the individual in question, but on the wider workforce.
Is it appropriate? There are many circumstances where it may be unreasonable, unethical or even unlawful to use a confidentiality clause. These include clauses preventing workers from whistleblowing, or those whose purpose is to cover up repeated wrongdoing or unlawful behaviour. NDAs used in these ways can contribute to a toxic workplace culture that normalises wrongdoing, silences victims, fails to take appropriate action against wrongdoers and leaves the root causes of misconduct unchecked.
Is there an alternative? Alternative routes should always be explored first. Addressing problems head on, early and informally where possible, can help to prevent the need for an NDA, as well as reduce the likelihood of similar problems arising in the future. This is about going back to the basics: not just having the right training and policies in place, but also ensuring that we effectively communicate with our people and role model the behaviours that we expect.
Acas is pleased to be publishing new guidance on NDAs, which provides further detail on the types of situations in which they may be appropriately used.
While complex and, to an extent, contentious, the spotlight on this topic is welcome. It is forcing us to delve deeper into the use of NDAs, and what they might be telling us about our own workplace cultures and people practices.
Susan Clews is chief executive of Acas