This new guidance follows recent media coverage around the use of non-disclosure agreements (NDAs) in cases that involve workplace sexual harassment or discrimination. We summarise some of the key points below.
Typically employers might use NDAs to stop an employee or worker sharing information. An NDA can also be known as a 'confidentiality clause'.
There are several reasons why an employer and employee or worker may use an NDA, including:
NDAs cannot be used to stop anyone whistleblowing or reporting a crime to the police.
ACAS also recommends that NDAs should not be used in the following instances:
Employers should also consider whether an NDA is the appropriate course of action and review each matter on a case-by-case basis. For example, an NDA may not be necessary where information is protected from disclosure to the public domain by data protection law.
NDAs are commonly used where an employer and employee enter into an agreement to resolve a dispute in the workplace. They might use an NDA to keep the details of the agreement or the fact that an agreement had been made confidential.
NDAs can also be used in one of the following circumstances:
The government has indicated its intention to legislate in this area, particularly to tackle the misuse of NDAs in the workplace to cover up sexual harassment, discrimination and assault. We will keep you updated with developments. However, employers are well advised to ensure their current use of NDAs complies with best practice.