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)
Network Rail signs agreement to prevent discrimination against disabled people14/01/2021 16:20:00
Network Rail’s North West route has entered a legally binding agreement with us after it failed to make reasonable adjustments for disabled users during a refurbishment.
DWP signs legally binding agreement to improve equality and diversity in the workplace18/12/2020 08:20:00
The Department for Work and Pensions (DWP) has entered a legally binding agreement with us after a former DWP employee won her claim of direct discrimination on the basis of age and race, racial harassment and victimisation.
Human rights watchdog launches updated online tool to monitor human rights compliance10/12/2020 15:48:00
On International Human Rights Day, the Equality and Human Rights Commission (EHRC) has revealed the next phase of its Human Rights Tracker, providing clear analysis of where progress has been made and where there is still a distance to travel for the UK and Welsh Governments in meeting international human rights standards.
Five countries to collaborate on latest Open Research Area call04/12/2020 16:10:00
The nature of society and equality across age groups, industry, habitats and public policy are among 13 exciting new projects announced yesterday.
Paradigm Precision signs legally binding agreement to protect staff from harassment and discrimination26/11/2020 14:52:00
Paradigm Precision Burnley Ltd has entered a legally binding agreement with the Equality and Human Rights Commission (EHRC) following an Employment Tribunal decision that found it had discriminated against one of its employees, Mr Peter Allen.
Home Office failed to comply with equality law when implementing ‘hostile environment’ measures25/11/2020 13:48:00
We assessed how and whether the Home Office complied with the Public Sector Equality Duty (PSED) when developing, implementing and monitoring the hostile environment policy agenda, particularly in considering its impact on Black members of the Windrush generation.
Equality and Human Rights Commission reaches settlement on ending unlawful detention of adults with incapacity by NHS Greater Glasgow and Clyde20/11/2020 16:10:00
The Equality and Human Rights Commission has stopped legal proceedings against NHS Greater Glasgow and Clyde (NHSGGC) and HC One Oval Ltd, the owner of a chain of care homes, after NHSGGC ended their practice of placing patients in two care homes in Glasgow without legal authority.
Government must do more to safeguard children’s rights and protect them from the impact of the pandemic20/11/2020 14:10:00
In our latest report to the UN Committee on the Rights of the Child (UN CRC), published on International Children’s Day 2020, we have expressed significant concerns about how the pandemic is exacerbating existing inequalities, and having a devastating impact on children’s rights, well-being and futures.
Investigation into equal pay at the BBC makes recommendations to rebuild trust with female employees13/11/2020 13:20:00
An investigation by the Equality and Human Rights Commission (EHRC) into historical issues of equal pay at the BBC has found no unlawful acts of pay discrimination and has recommended improvements to increase transparency and rebuild trust with women at the organisation.