The Equality and Human Rights Commission (EHRC) has published guidance on using confidentiality agreements in discrimination cases, which sets out good practice for employers and clarifies the law on the enforceability and legality of such agreements.
The guidance states that employers should carefully consider the wording of agreements that seek to stop workers using or discussing confidential information. It should be clear from the wording what the worker can or cannot do, and that the agreement does not stop them from speaking about any form of discrimination. It also states that employers should not put workers under pressure to sign a confidentiality agreement; an agreement will not be enforceable if a worker is under duress to sign it. Employers should also encourage workers to take independent legal advice on such agreements.
On the issue of carving out certain disclosures from confidentiality clauses, the guidance states that workers should always be permitted to have discussions with the police, regulators, lawyers and medical professionals who are bound by an obligation of confidentiality, as well as immediate family members, and a potential future employer, where and to the extent necessary.
The guidance recommends that large employers keep a central record of confidentiality agreements that they enter into, to allow them to monitor potential systemic discrimination issues. It also states that where a settlement agreement has been used to settle a claim, the employer must not treat this as the end of the matter. Rather, in order to avail itself of the "reasonable steps" defence in future claims, the employer must still investigate the allegations where possible, take any reasonable further steps to address the discrimination, and take reasonable steps to prevent discrimination occurring again in future.
This non-statutory guidance follows the government response to its consultation on the use of NDAs in workplace harassment and discrimination cases, which committed to new legislation restricting the use of confidentiality clauses. The timing of such legislation is unknown, and it was not mentioned in the Queen's Speech. However, as and when this legislation is enacted, aspects of this guidance will need to be revised.
Source: Equality and Human Rights Commission: The use of confidentiality agreements in discrimination cases (17 October 2019).