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Equalities watchdog “calls time” on use of non-disclosure agreements in discrimination cases

The Equality and Human Rights Commission (EHRC) has launched new guidance for employers on the use of confidentiality agreements – also known as NDAs – in discrimination cases.

The EHRC said the guidance “offers both employers and employees clarity on the law around confidentiality agreements and when and how they can be used”.

It also sets out good practice on the use of NDAs in order to encourage greater transparency and improved understanding of different types of discrimination at work, so that systemic problems can be identified and tackled by employers and employees alike.

Rebecca Hilsenrath, Chief Executive of the Equality and Human Rights Commission, said: “We’re calling time on NDAs which have been used to cover up discrimination, harassment or victimisation. There are no more excuses. Everyone should have the power to speak out about harassment and victimisation.  Nobody should be silenced. We all have the right to work in a safe environment and a healthy workplace needs employers to step up and make sure those who work for them have a voice.  Our guidance will help make that happen.”

The guidance follows the EHRC’s 2018 report ‘Turning the tables: ending sexual harassment at work’, which explained that while some confidentiality agreements do have legitimate uses, they are routinely and inappropriately used to cover up, and stop workers from speaking up about, harassment. In turn, preventing discussion of discrimination on a wider scale.             

It outlines some key dos and don’ts:

  • 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 the organisation in the future.
  • 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
  • Don’t ever use a confidentiality agreement to stop employees from whistleblowing, reporting criminal activity or disclosing other information as required by law.
  • Do always give workers time to read and fully understand the terms of a confidentiality agreement.
  • Do always give workers a copy of the confidentiality agreement.
  • Do make sure the confidentiality agreement spells out the details of exactly what information is confidential.
  • Do monitor the use of confidentiality agreements in the workplace.

The guidance also calls on employers to update any out of date policies, such as those on bullying and harassment.

The EHRC has issued the guidance using its powers to provide information and advice under section 13 of the Equality Act 2006.

The guidance was developed after consultation with representatives from a range of groups, including government departments, public sector bodies, trade unions, representative bodies, lawyers, regulators and third sector organisations.

The guidance is not a statutory code issued under section 14 Equality Act 2006. Therefore, while an employment tribunal or court is not obliged to take this guidance into account, it may still be used as evidence in legal proceedings where it is relevant.