Government’s focus on preventing misuse of NDAs is welcome but the law alone will not stamp out harassment, says CIPD

The CIPD welcomes the amendment to the Employment Rights Bill to prevent the misuse of non-disclosure agreements (NDAs) where workers are prevented from speaking out about harassment and discrimination in the workplace, but warns further consultation over the details will be needed.

Commenting on the development, Ben Willmott, head of public policy for the CIPD, the professional body for HR and people development says:

“For too long, a minority of companies have been able to use NDAs to prevent employees from speaking out about harassment or discrimination at work. NDAs should never be used to push unfair treatment of any kind under the carpet. Introducing stricter conditions for the use of NDAs could be a positive step towards creating greater accountability in organisations whilst protecting an individual’s right to sign an NDA if they so wish. 

“NDAs can be useful for both employers and employees in certain circumstances, but it’s vital to ensure that they are used legally and ethically. For instance, in some instances, it may be to an individual’s advantage and preference to have an NDA so they can reach a settlement quickly and confidentially and have some closure.

“For this reason, it’s important the amendment bringing in this change also enables employees to choose to have an NDA in circumstances where they believe it is in their interests. There is also the need for improvements to the labour market enforcement system as part of wider measures to address discrimination and harassment at work.

“Changes to the law alone though will not prevent poor work cultures or address poor people management practices which are often the underlying causes of sexual harassment or discrimination. While we welcome this development, we would also urge employers to tackle the root causes of such issues so all employees can feel safe and protected at work. People professionals have an important role to play in ensuring the ethical use of NDAs. This means influencing the organisation’s leadership to have oversight of their use. Importantly, organisations should have the correct channels in place for staff to raise concerns they have about inappropriate workplace behaviour so these can be addressed at an early stage”

• A CIPD survey of over 2000 UK employers in Spring 2024 explored the use of NDAs in workplaces and found that:
  22% of employers use NDAs if dealing with allegations of sexual harassment, but over a third don’t know.
• Most respondents (65%) whose organisations use settlement agreements in cases of alleged sexual harassment didn’t know the extent of their use.
• Private sector organisations are significantly more likely to use them compared with public and voluntary sector organisations (25% compared with 16% and 9%, respectively)

Read the report