NDAs have long been a popular subject in the media. Seeking to clarify its position on their use in employment matters, the Equality and Human Rights Commission has issued new guidance.
The purpose of the guidance is to clarify the law on confidentiality agreements in employment scenarios, with particular emphasis on improving understanding and transparency when combating discrimination in the workplace. Whilst not statutory guidance, this is still highly useful for employers and employees, given that new legislation that will restrict the use of confidentiality clauses in NDAs is expected in the near future.
The guidance covers the use of confidentiality agreements between employers and all those who are protected by Equality Act 2010. Naturally, the guidance stresses how carefully the employers must scrutinise the wording of any such agreement. Each agreement should be very clear about what the worker can or cannot do and, in particular, the agreement must not prevent the individual from speaking out about any form of discrimination. This ‘Good Practice’ section goes on to state that employers should not put their employees under any pressure to sign any confidentiality agreement. If they do, it may render the agreement unenforceable. It is recommended that employers go one step further and encourage their workers to take independent legal advice before signing any agreement.
The guidance also touches on Settlement Agreements and COT3s, stating that every employer should be wary of treating these agreements as the end of the matter. Instead the guidance advises that any discrimination matters that may be raised by the other party to the Settlement Agreement or COT3 should still be investigated if the employer is to truly avail itself of the ‘reasonable steps’ defence in any potential future claim.
You can find the full guidance here.