NDAs should not mute employees sexual harassment claims

Non-disclosure agreements (NDAs) should not be used as a way to prevent employees from reporting on discrimination or sexual harassment, guidance which has received the backing of employment lawyers.

Acas (Advisory, conciliation and arbitration service) has published guidance on the use of NDAs.

Acas’ new guidance is clear that NDAs cannot be used to stop employees from:

    • reporting discrimination or sexual harassment at work or to the police
    • whistleblowing
    • disclosing a future act of discrimination or harassment.

 

It states that NDAs should not be used to hide a problem or brush it under the carpet. If an employer still wishes to use an NDA then Acas’ advice is that employers should:

    • always give a clear explanation of why one is being proposed and what it is intending to achieve
    • ensure that a worker is given reasonable time to carefully consider it as they may wish to seek trade union or legal advice on its implication
    • think about whether it is better to address an issue head on rather than try to cover it up
    • never use NDAs routinely.

 

Susan Clews, Acas chief executive, 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.

Dr Sybille Steiner law partner at Irwin Mitchell said:

Given the negative publicity concerning the misuse of NDAs last year, we welcome this guidance by Acas which is designed to help employers and workers understand what NDAs are and how to prevent their misuse.

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.

They can sometimes be used to restrict workers from disclosing sensitive commercial information or trade secrets to people outside their place of work. But employers should consider whether one is needed in the first place as their misuse can be very damaging to their organisation.