The Equality and Human Rights Commission has released new guidance for employers on the use of confidentiality agreements (often referred to as NDAs) in discrimination cases.

The EHRC has previously reported that NDAs are “routinely and inappropriately used to cover up, and stop workers from speaking up about, harassment”.

The new guidance refers to confidentiality agreements, gagging orders and NDAs as well as “any form of agreement or contract where it is agreed that certain types of information will not be discussed or passed on”.

The confidentiality agreements referred to are between “employers and all those who are protected by the work provisions of the Equality Act 2010”. They are all referred to as ‘workers’ within the guidance but employers should note that it includes:

●      Employees

●      Workers

●      Apprentices (who have a contract of apprenticeship)

●      Crown employees

●      House of Commons staff and House of Lords staff

●      Job applicants

●      Contract workers, including agency workers and consultants

●      Police officers

●      Partners in a firm

●      Members in a limited liability partnership

●      Personal and public office holders

●      Those who undertake vocational training.

The seven point document provides employers with a guide to good practice, helping employers understand how and when they can use confidentiality agreements legitimately, and when these agreements will not be enforceable.

Rebecca Hilsenrath, Chief Executive of the EHRC, 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 includes:

●      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 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

Employers are reminded to ensure that all policies and procedures are up to date.