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Guidance on the use of confidentiality agreements in discrimination cases has been published by the EHRC.

The guidance on such agreements (sometimes called NDAs - non-disclosure agreements - or gagging clauses) explains the law and good practice. It relates to discrimination, harassment and victimisation claims and covers a broad range of workers, including agency workers and job applicants in England, Scotland and Wales. It aims to help employers understand how and when they can use confidentiality agreements legitimately, and when these agreements will not be enforceable. It is not a statutory code but has been produced at the behest of the government. The government has indicated that it will regulate the use of NDAs but, as yet, there is no scheduled legislation. Further guidance is also expected from ACAS.

The EHRC guidance outlines some important dos and don’ts:

• Don’t ever ask a worker to sign a confidentiality agreement as part of their employment contract which would prevent them from making discrimination claim against you in the future.
• Don’t use a confidentiality agreement to prevent a worker from discussing a discriminatory incident that took place in their workplace unless, for example, the victim has requested confidentiality around their discriminatory experience.
• Don’t ever use a confidentiality agreement to stop employees from whistleblowing, reporting criminal activity or disclosing other information as required by law.
• Do always give your worker time to read and fully understand the terms of a confidentiality agreement.
• Do always give your worker a copy of the confidentiality agreement.
• Do make sure the confidentiality agreement spells out the details of exactly what information is confidential.
• Do monitor the use of confidentiality agreements in your workplace.