In October 2019 the EHRC issued guidance on the use of confidentiality agreements in discrimination cases. ACAS has now issued its own less technical guidance on non-disclosure agreements (NDAs), which is aimed at employers, managers, HR professionals, workers, union representatives and job applicants. The guide refers to confidentiality clauses that might be included in settlement agreements, COT3 agreements or contracts of employment generically as NDAs.
In particular, the guidance emphasises that NDAs of this type should not be used:
- As a matter of routine;
- To cover up inappropriate behaviour or wrong-doing, particularly where there is a risk that behaviour could be repeated;
- To mislead someone;
- To stop someone from reporting discrimination, harassment or sexual harassment, or to stop someone from blowing the whistle;
- To avoid a legal requirement to make a referral to a regulatory body, government agency or the police; or
- Before alternative options have been explored, such as resolving an issue through an employer's normal procedures.
The guidance also emphasises that confidentiality clauses should be considered on a case by case basis and explains in simple terms when an NDA will not be enforceable.
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