Non-disclosure agreements (NDAs): Guide for people professionals
Clear and practical advice on the proper use of non-disclosure agreements (NDAs) or confidentiality clauses and how to avoid inappropriate use
Clear and practical advice on the proper use of non-disclosure agreements (NDAs) or confidentiality clauses and how to avoid inappropriate use
Non-disclosure agreements (NDAs) or confidentiality clauses can be used to ensure employees keep matters about their employment confidential. In recent years, the misuse of NDAs has come under scrutiny following revelations about their use to silence victims of sexual harassment. Various measures have been proposed to control the use of NDAs and prevent their abuse (including proposals under the Employment Rights Bill) and both Acas and the Equality and Human Rights Commission (EHRC) have published guidance on the topic.
NDAs can be useful for both employers and employees in certain circumstances, but it is vital to ensure that they are used legally and ethically. People professionals have a key role in ensuring that NDAs are not misused.
The Employment Rights Bill proposes to ban the use of NDAs in cases of harassment and discrimination. Confidentiality clauses used in settlement agreements that sought to prevent a worker speaking about an allegation of harassment – including sexual harassment – or discrimination would be null and void under these proposals. CIPD members can keep up to date with the latest on these changes with our tracker of potential law changes.
We will update this page once any changes are enforced.
People professionals need to be aware of the serious potential misuse of NDAs and confidentiality clauses in relation to sexual harassment complaints. NDAs should never be used to cover up inappropriate behaviour and wrongdoing, or to stop claims of whistleblowing or other forms of discrimination.
People professionals have an important role to play in ensuring the ethical use of NDAs. This means influencing the organisation’s leadership, in that NDAs should never be used as a default option in bullying or harassment complaints, or to silence alleged victims. There needs to be oversight at the top of the organisation to ensure that NDAs are not used to push harassment issues under the carpet and avoid tackling unfair treatment.
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