The Equality and Human Rights Commission (EHRC) has launched new guidance which is designed to offer clarity on the law around non-disclosure agreements (NDAs).

The guidance is intended to inform both employers and employees as to when and how NDAs, which are also referred to as confidentiality agreements, can be used in discrimination cases.

Its launch coincided with the second anniversary of the #MeToo campaign and follows the EHRC’s 2018 report, ‘Turning the tables: ending sexual harassment at work’.

By highlighting best practice on the use of NDAs, the guidance encourages greater transparency and a better understanding of the varying types of workplace discrimination, in order that problems can be identified and tackled.

Rebecca Hilsenrath, Chief Executive of the EHRC, commented:

“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.”

The guidance sets out some useful do and don’ts, including:

• don’t ever ask a worker to sign a confidentiality agreement as part of their employment contract which would prevent them from making a discrimination claim against you 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 your worker time to read and fully understand the terms of a confidentiality agreement;
• do always give your worker 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 your workplace.

The EHRC has urged employers who use confidentiality agreements to make sure that managers with responsibility for drafting or negotiating them are aware of the guidance, which can be accessed here.