Non-Disclosure & Confidentiality Agreements – New Acas Guidance States That They Cannot Be Used To Silence Claims Of Sexual Harassment

The use of non-disclosure agreements between workers and employers has become a contentious issue.

Whilst they can be a useful tool for a business to protect sensitive information and prevent employees from sharing details about payments they have received, they are also being used to stop victims of alleged harassment and discrimination from speaking out.

Acas guidance on non-disclosure agreements

Acas has recently issued new guidance in relation to the use of non-disclosure agreements, stating that they cannot be used in instances where an employee is alleging harassment and discrimination such as the recent high profile sexual harassment cases.

The guidance goes on to state that non-disclosure agreements cannot prevent an employee from reporting instances of discrimination or sexual harassment at work in order to stop whistleblowing, or reporting it to the Police.

Susan Clews, Chief Executive of Acas, 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. Our new advice can help employers and their staff understand what NDAs are, how to prevent their misuse and examples where they will not be needed.”

What are non-disclosure agreements?

Employment Tribunals are generally open to the general public and the press, meaning that any allegations made by claimants, along with the Tribunal decision, are free to be reported on by the media.

However, it is now common practice for settlement agreements (previously known as compromise agreements) to include provisions which require both parties to keep the facts of the case and the settlement terms strictly private, known as non-disclosure agreements.

This type of agreement may also be used in instances where a business is beginning a project or venture and may want to keep certain information secret. Consequently, they may ask an employee (or a prospective employee) to sign a non-disclosure agreement.

Should legal advice be sought before signing an agreement?

The majority of non-disclosure agreements place strict legal requirements on all parties involved, so it is advisable for employees to obtain legal assistance before signing.

An experienced employment law solicitor will be able to advise an employee on the full implications outlined in the agreement and/or recommend any specific changes to it before it is signed.

In certain cases, an employer may be willing to pay the employees’ legal costs in relation to the non-disclosure agreement, as it is also in their best interests that the employee is fully aware of the terms and obligations of the agreement before entering into it.

A non-disclosure agreement must work for all parties

When consenting to an agreement, all parties must be happy with the obligations that it places on them. An employer cannot place undue pressure on a worker to sign an agreement if they do not consent to all of the terms that are contained in it. Also, an employee should always be given a reasonable amount of time to consider the terms of the agreement so that they can get legal advice before entering into it.

It is important to bear in mind any restrictions or obligations that the agreement places on the employee in the future in relation to time limits on confidentiality, knowing who the employee can talk to about the job role (such as family members or close friends) and how the worker can refer to the period of employment in future job interviews and roles.

Acas guidance non-disclosure agreementsHow Nelsons can help

Laura Kearsley is a Partner in our expert Employment Law team.

For further information on non-disclosure agreements, please contact Laura or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.

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