18 February 2020
ACAS issued guidance last week for employers on the use and misuse of non-disclosure agreements (“NDAs”).
[https://www.acas.org.uk/non-disclosure-agreements]
NDAs or “confidentiality clauses” are often used legitimately in contracts of employment, standalone contracts or settlement agreements to prevent current and former employees making particular information public.
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Laura Salmond, Partner |
However, it has been reported that NDAs have been used inappropriately, for example to settle allegations of sexual misconduct.
The new ACAS guidance suggests that employers should not use NDAs to simply brush problems under the carpet or to:
- Prevent someone blowing the whistle;
- Prevent allegations of harassment, sexual harassment and discrimination;
- Cover up inappropriate behaviour or misconduct; or
- Avoid disputes arising in the workplace
Instead of using NDAs to resolve workplace disputes, employers should implement robust and fair policies and procedures including:
- A Disciplinary and Grievance Procedure;
- Whistleblowing Policy;
- Bullying and Harassment Policy; and
- Equal Opportunities Policy
This ACAS guidance follows guidance published by the Equalities and Human Right Commission last month on sexual harassment at work which also discourages the inappropriate use of NDAs. [https://www.equalityhumanrights.com/en/publication-download/sexual-harassment-and-harassment-work-technical-guidance] Employers should therefore be alert to the potential misuse of NDAs and seek legal advice on a case-by-case basis before implementing one.
Contact Laura Salmond or another member of our Specialist Employment Team if you would like to discuss any aspect of this blog.
Contact: Laura Salmond, Partner lis@bto.co.uk T: 0141 221 8012