Hot on the back of the #MeToo movement, the Equality and Human Rights Commission (EHRC) has published some non-statutory guidance on the use of confidentiality or non-disclosure agreements in discrimination cases.
Can an NDA be used to stop pursuit of a discrimination claim?
The guidance confirms that confidentiality clauses can be used in employment contracts to protect a business's confidential information. However, they shouldn’t be used to stop a worker pursuing a discrimination claim in relation to future acts – those clauses will not be enforceable.
When can gagging clauses be used?
The guidance discourages the habitual use of gagging clauses when settling discrimination claims. It suggests they are only used in specific circumstances such as a case where a worker does not want the details of their discrimination case to become public.
The guidance also advises employers to tailor the clause to the individual case rather than using a standard template. The guidance also suggests that employers might still need to investigate claims, which are settled to show they have taken steps to prevent discrimination in the workplace.
NDAs and discrimination
The aim of the guidance is to ensure that discrimination in the workplace is rooted out. Employers should create an environment where employees feel they can speak out against discrimination and know that they will be supported. If people know they can raise issues, which will be taken seriously, gagging clauses are unlikely to be needed.
Kate Fretten, Employment Partner says “Settlement agreements between employers and workers nearly always have a non-disclosure agreement contained within them. It is common to have a blanket ban on disclosing any confidential information in the future. Both employers and their legal representatives need to ensure that the guidance is followed and the agreements tailored in discrimination cases in the case of future settlement agreements.”
The Equality and Human Rights Commission Guidance on NDAs can be found here.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate, Paul or Chris will be happy to discuss it with you.
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