Changes to NDAs in workplaces

In a significant move to protect employees, the proposed changes to the Employment Rights Bill will ban the use of non-disclosure agreements (NDAs) that silence victims of workplace harassment and abuse. Christine Braamskamp, Managing Partner at Jenner & Block, explained that the modifications will void NDAs employed by organisations against employees subjected to harassment, including sexual harassment or discrimination. She noted that these changes are a positive step, allowing victims and witnesses of misconduct to speak freely without fear of retribution.

Braamskamp made an important observation when she stated that NDAs are not always used nefariously and can be a pragmatic tool for employers to manage the privacy and rights of everyone involved in workplace misconduct. She emphasised the need for employers to rethink their approaches, warning that this shift may not always benefit those meant to be protected by the law. She said, “Unproven allegations can irreparably damage people’s lives, reputations and professional relationships and adversely impact their physical and mental health.” This highlights the delicate balance between protecting the rights of victims and ensuring fairness for those accused.

The absence of NDAs could complicate the ability of employers to provide appropriate protections in cases of alleged misconduct. Braamskamp further commented that preserving confidentiality is critical, especially when investigations into misconduct are ongoing. She explained, “Allowing (or, risking) allegations to be discussed openly can impact the fairness and integrity of the procedure, preventing regulators and businesses from getting a true picture of the facts and learning lessons.” This reflects the need for a careful approach to workplace misconduct policies, one that safeguards the interests of all parties involved.

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