EHRC Publish New Best Practice Guidance On Use Of Confidentiality Agreements (Or 'NDAs') In Discrimination Cases

The Equality and Human Rights Commission has this week published new Guidance on the use of confidentiality agreements in discrimination cases. The Guidance is non-statutory and much of its content is expressed to be 'good practice' rather than setting out legal requirements. Key recommendations include that in most cases employers should not use confidentiality agreements to stop a worker discussing an act of discrimination, that employers should pay for a worker to receive independent advice (including covering the adviser negotiating changes to the agreement if necessary) even if the worker ultimately chooses not to sign, and that the use of a confidentiality agreement should be signed off by a director or appropriate delegated senior manager.

The new guidance follows on from the recommendations made by the Work and Equalities Select Committee In June 2019 (see here) and the Government's proposed reforms (yet to be legislated) published in August 2019 ( here), but the best practice recommendations go considerably further than the latter and may be impractical or unrealistic in some situations.

In relation to confidentiality agreements in terms and conditions of employment, the Guidance suggests that:

these should make clear that the agreement does not stop the individual from speaking about any form of discrimination, for example by excluding this from the definition of confidential information workers should not be put under pressure to sign and should be given time to seek advice the worker must always be given a copy of the agreement. In relation to settlement agreements, the Guidance sets out the following good practice which, it is suggested, will help employers "reduce the potential for confidentiality agreements to have an adverse impact on the individual worker and on workplace culture":

confidentiality clauses should not be included in a template agreement, and should only be added after consideration on a case-by-case basis when required in most cases it will not be necessary or appropriate to use confidentiality agreements that stop a worker discussing an act of discrimination with others. (On its face this goes further than the Select Committee's recommendation that confidentiality agreements should not prevent workers discussing potential claims with other alleged victims, or supporting such victims through the trauma of raising a complaint of discrimination and harassment.) There may be exceptions to this where the...