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ACAS have published new advice to help employers and workers understand what non-disclosure agreements (NDAs) are and how to prevent their misuse.

The ACAS guidance says that employers should consider whether an NDA is needed in the first place as their misuse can be very damaging to their organisation. NDAs, says ACAS, cannot be used to stop someone from:

• reporting discrimination or sexual harassment at work or to the police
• whistleblowing, or
• disclosing a future act of discrimination or harassment

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 a worker is given reasonable time to carefully consider it as they may wish to seek 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, and
• 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.

The ACAS guide comes a few months after similar guidance from the EHRC.

Barry Ross comments:

‘The guidance recognises that there are legitimate reasons where both employers and employees want to use an NDA to ensure that both parties have a clean break and confidentiality is in everyone’s interests. In doing so, it takes a more pragmatic view of NDAs than can sometimes be portrayed in the media. ACAS takes time to explain that it is important to distinguish between genuine use and situations where an NDA may be misused or used to take advantage of a whistleblower or someone who has been discriminated against or sexually harassed. They make it clear that individuals have a right to report discrimination or sexual harassment in the workplace and that NDAs are not there as a tool to prevent workers from making protected disclosures or “blowing the whistle”. The guide also importantly recognises that while an NDA may be used by a company, it is not an excuse to simply brush any organisational problems under the carpet and these must be addressed by them. In this day and age, negative press around NDAs being used incorrectly or in an abusive matter is likely to have grave consequences for a company’s profitability, as well as their ability to hire top talent, not least because the younger generation of employees want to ensure more than ever that their employer is aligned to their moral views’.