Non-Disclosure Agreement current situation

03 March 2020 | Jatinder Tara

Confidentiality clauses or non-disclosure agreements (NDAs) are provisions in a contract which seek to prohibit the disclosure of certain information /conduct and thus can serve has a useful and legitimate tool to protect the reputations of organisations / individuals and in the context of employment law such provisions would normally be found within the wording of an employment contract or part of a settlement agreement.

Currently, there are certain exemptions to NDA namely employees can report criminal offences, failures to comply with legal obligations and health and safety risks i.e. whistle blowing matters (protected disclosure), however such protection did not go far enough as following high profile cases back in 2019 it became apparent that confidentiality clauses could be misused in the context of covering up alleged  assaults, discrimination and sexual harassment's incidents.

The Equality Act 2010

Although wrongdoing in the context of sexual harassment could be a breach of the Equality Act 2010 and sexual assault being a criminal offence, the Government felt the need to review NDAs and on 4th March 2019 launched a consultation process as to how best to create a level playing field where the vulnerable could be protected and the outcome of the consultation was that the Government, amongst other things, would introduce legislation whereby vulnerable employees / workers could take the matter up via the employment tribunal to seek compensation should the claim be successful.  

At present we are awaiting further guidance on the proposed legislation however ACAS has published new guidance to help employers and employees understand what NDAs are and to discourage their misuse (ACAS - Non disclosure agreements guidance).

The above supplements detailed guidance provided by Equality and Human Rights Commission under their publication “The use of confidentiality agreements in discrimination cases “October 2019.

The crux of this article is to make businesses aware that moving forward any NDAs should comply with best practice and should not be used to stop victims reporting sexual misconduct, assaults and discrimination. If you would like further information on NDAs please call us on 0333 240 7208 or contact us here. 

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