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EHRC: no more excuses for NDA abuse

21 October 2019

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Lawyers should not have to take all responsibility for drafting and negotiating non-disclosure agreements (NDAs), the Equality and Human Rights Commission (EHRC) has said.

In new guidance on the use of confidentiality agreements in discrimination cases, the Commission said it was “calling time” on NDAs being used to cover up discrimination, harassment or victimisation.

The guidance aims to provide employers and employees with clarity on the law around NDAs and outline when and how they can be used.

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

The Commission acknowledges that NDAs have legitimate uses – for example, to protect confidential information or in cases where a worker wants to make sure the details of the discrimination to which they have been subjected will not be discussed.

However, it added that “evidence suggests that in some circumstances confidentiality agreements have been used to cover up the worst instances of discrimination”; and there is also evidence to suggest the inclusion of NDAs in terms and conditions or settlement agreements has become commonplace.

“This can prevent workers from speaking about their experiences, create confusion as to what they can and cannot say, and make them fearful about what will happen if they do speak up.”    

The Commission said in its report that employers should take legal advice where necessary on the use of NDAs to make sure they are used and worded appropriately.

However, employers should not delegate all responsibility for drafting and negotiating confidentiality agreements to their lawyers:

“Employers should ensure that they provide instructions to their lawyers on the use of NDAs when drafting the agreement and when any amendments to NDAs are being negotiated.”

It urged those who advise employers and workers on confidentiality agreements to ensure they remain up-to-date with their regulatory obligations and guidance issued by regulators.

Rebecca Hilsenrath, the Commission’s chief executive, 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.”

She added: “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, which lists a number of dos and don’ts for employers on the use of NDAs can be accessed here.

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