Lawyer Claims It Will Assist Employers To Understand How Not To Use NDAs

Employment lawyers at national law firm Irwin Mitchell welcome the new guidance published by Acas today, on the use of non-disclosure agreements (NDAs) in cases that involve workplace sexual harassment or discrimination.

Expert Opinion

"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.” Sybille Steiner - Partner

Acas has made it very clear that NDAs are not to be used to silence whistle-blowers who have highlighted incidents or sexual harassment or discrimination. It says:

"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."

Acas’ new guidance is clear that NDAs cannot be used to stop someone 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 implications
• Think about whether it is better to address an issue head on rather than try to cover it up
• Never use NDAs routinely.

"These types of agreements should be written in clear, plain English that is simple to understand and leaves no room for ambiguity. Managers who are involved with these types of agreements should be well trained in using them and businesses should have a clear and consistent policy around them that are regularly reviewed and reported on.

"A worker should be able to ask questions and seek advice before agreeing an NDA. A staff member can also seek advice if they have concerns over an NDA that they have already signed."

Expert Opinion

"This guidance will assist employers to understand how and how not to use NDAs and all employers should make sure that managers are trained accordingly." Sybille Steiner - Partner