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NDAs ‘can't be used to stop harassment or discrimination claims'

Posted: 10th March 2020   In: Business Employment

The workplace advisory service Acas has issued new guidelines for employers making it clear that they cannot use non-disclosure agreements (NDAs) to silence employees who want to make claims of sexual harassment or discrimination.

Acas Chief Executive Susan Clews said: "The news has reported on victims coming forward that have alleged appalling abuse by high-profile figures who have then tried to use NDAs to silence whistleblowers.

"NDAs can be used legitimately in some situations but they should not be used routinely or to prevent someone from reporting sexual harassment, discrimination or whistleblowing at work.”

NDAs are sometimes used to restrict workers from disclosing sensitive commercial information or trade secrets to people outside their place of work. But employers should consider whether one is needed in the first place as their misuse can be very damaging to their organisation.

If an employer still wishes to use an NDA, then the advice is that they should:

  1. always give a clear explanation of why one is being proposed and what it's intending to achieve
  2. ensure that a worker is given reasonable time to carefully consider it as they may wish to seek trade union or legal advice on its implications
  3. think about whether it's better to address an issue head on rather than try to cover it up
  4. never use NDAs routinely.
These types of agreements should be written in clear, plain English that's simple to understand and leaves no room for ambiguity. Managers involved with these types of agreements should be well trained in using them. Businesses should have a clear and consistent policy around them that is regularly reviewed and reported on.

A worker should be able to ask questions and seek advice before agreeing to an NDA. They can also seek legal advice if they have concerns over an NDA they have already signed.

Please contact David Rushmere for advice about how to use NDAs or if you would like help with any aspect of employment law.
Posted by: David Rushmere
Luton Office