New EHRC guidance on NDAs in discrimination cases ‘should encourage employers to think carefully’
The Equalities and Human Rights Commission (EHRC) has launched new guidance for employers on the use of confidentiality agreements, also known as non-disclosure agreements (NDAs), in discrimination cases. The EHRC intends for the guidance to inform both employers and employees about the law around confidentiality agreements and when and how they can be used. It follows the EHRC’s 2018 report called ‘Turning the tables—ending sexual harassment at work’, in which the EHRC argues that NDAs are ‘are routinely and inappropriately used to cover up, and stop workers from speaking up about, harassment’. Harriet Bowtell, senior associate at Jones Chase, contends that the guidance is a welcome addition. However, she also mentions that that some areas mentioned in the guidance may prove controversial in practice.
A welcome addition
Bowtell welcomes the new guidance, arguing that it ‘should encourage employers to think carefully about the use of such agreements in every case involving discrimination and not just roll out their template agreement’. She also mentions that ‘employers should consider carefully in every case whether a confidentiality agreement is necessary, have this signed off at a senior level and be able to justify its use to the employee’.
However, Bowtell notes that some areas mentioned in the guidance may prove controversial. For instance, the authors of the guidance state that ‘confidentiality agreements generally should only be used at the employee’s request’. She contends that this ‘may not…be workable [in practice, as] settlement agreements are often used where the employee receives a payment as part of a commercial settlement and without admission of liability, usually where there is a dispute as to what may have happened’.
Bowtell also highlights that the guidance states that ‘an employer should pay the individual’s costs of independent legal advice on the agreement, even if having received the advice the individual ultimately finds it unacceptable and reasonably decides not to sign [and that] the costs contribution should also be sufficient to cover advice on the confidentiality provision’. She believes that in her experience, ‘neither of these matters are current practice… and employers may find individuals seeking this assurance now at the outset’.
The guidance can be found here
The EHRC’s 2018 report can be found here.
Interviewed by Tom Inchley.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.