Use of NDAs in discrimination & harassment cases

Further to our update on the Government's plan to tackle mis-use of non-disclosure agreements (NDAs), the Equality and Human Rights Commission has published new guidance on the use of confidentiality agreements in discrimination and harassment cases. It has issued this guidance using its powers under section 13 of the Equality Act 2006.

The guidance provides information and advice and sets out good practice, with the aim of trying to better identify and tackle systemic problems. It tells us that evidence of the use of such clauses is common place, and that they may prevent people from speaking up about discrimination.

It also contains helpful examples of when it might be unlawful to use a confidentiality agreement; for example, to stop a worker making a protected disclosure or reporting a criminal offence.

This Guidance is not binding on Employment Tribunals or Courts but may be used as evidence if it is relevant so employers should beware of failure to comply.

If you have any queries about NDAs, please do not hesitate to contact a member of our specialist Employment team.

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