Equality and Human Rights Commission (EHRC)
Calling time on NDAs in discrimination cases
Two years after the #MeToo campaign, the Equality and Human Rights Commission has launched new guidance for employers on the use of confidentiality agreements (often referred to as NDAs) in discrimination cases.
The guidance offers both employers and employees clarity on the law around confidentiality agreements and 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, Chief Executive of the Equality and Human Rights Commission, 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 our 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. In turn, preventing discussion of discrimination on a wider scale.
It outlines some important dos and don’ts:
- 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
It also serves as timely reminder for employers to update any out of date policies, such as those on bullying and harassment.
We have issued the guidance using our powers to provide information and advice under section 13 of the Equality Act 2006.
Read the guidance: The use of confidentiality agreements in discrimination cases
Latest News from
Equality and Human Rights Commission (EHRC)
Support and care for older people during the coronavirus pandemic15/05/2020 13:15:00
David Isaac, Chair of the Equality and Human Rights Commission, commented on support and care for older people during the coronavirus pandemic and concerns about breaches of human rights
Complaints raised about Islamophobia in the Conservative Party13/05/2020 10:25:00
An Equality and Human Rights Commission spokesperson yesterday commented on complaints raised about Islamophobia in the Conservative Party.
Equality body calls on retailers to do more for disabled customers during corona crisis07/05/2020 16:35:00
The retail sector is being told to take swift action to ensure that disabled people are not left unable to shop for food and essentials during the coronavirus crisis.
Our response: Office for National Statistics (ONS) stats show coronavirus deaths by ethnicity07/05/2020 13:25:00
Equality and Human Rights Commission Chief Executive, Rebecca Hilsenrath, reacted to today’s Office for National Statistics (ONS) stats showing deaths by ethnicity and that black people are four times more likely to die from coronavirus
Employers face raft of disability discrimination claims amid Covid-19 crisis05/05/2020 10:25:00
Employers may face a raft of discrimination claims if they unfairly treat disabled or pregnant members of staff during, or as a result of, the coronavirus crisis, the Equality and Human Rights Commission has said.
Predicted grading during COVID-19 could limit young people's futures01/05/2020 14:05:00
We have responded to Ofqual's formal consultation on its decision to use predicted grading during the COVID-19 pandemic, in place of this year’s summer assessments in England.
Coronavirus pandemic: a letter to the British Medical Association24/04/2020 10:38:00
We have written to the British Medical Association to highlight our concerns around its ethical guidance during the coronavirus outbreak.
Coronavirus pandemic: equality and human rights considerations in access to food and essentials23/04/2020 12:10:00
EHRC have written to the British Retail Consortium to highlight concerns about disabled people not on the Government's clinically vulnerable people list and their access to food and essential items.