Equality watchdog 'calls time on cover-up confidentiality agreements'

The Equality and Human Rights Commission says it’s calling time on the practice of using confidentiality agreements to cover up company wrongdoing in discrimination cases.

The commission has published new guidance offering both employers and employees clarity on the law governing the agreements, often referred to as Non-Disclosure Agreements (NDAs), including when and how they can be used.

It also sets out good practice on the use of NDAs in order to encourage greater transparency and improved understanding of different types of discrimination at work, so that systemic problems can be identified and tackled by employers and employees alike.

Rebecca Hilsenrath, Commission Chief Executive, 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 follows the commission’s 2018 report Turning the tables: ending sexual harassment at work, which explained that, while some confidentiality agreements do have legitimate uses, they are routinely and inappropriately used to cover up, and stop workers from speaking up about, harassment. This can then prevent discussion of discrimination on a wider scale.

It offers some key bullet point advice:

  • 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.

The commission says its new guidance also serves as a timely reminder for employers to update any out-of-date policies, such as those on bullying and harassment.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.

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