Acas issues guidance on use of non-disclosure agreements

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Non-disclosure agreements must not be used to stop someone from reporting discrimination or sexual harassment or from blowing the whistle on workplace practices, new Acas guidance has directed.

Published today, new guidance on the use of NDAs by employers states that such agreements should not be used to brush a problem under the carpet and, where they are used in a reasonable situation, they should not be used routinely.

Susan Clews, Acas chief executive, said: “The news has reported on victims coming forward that have alleged appalling abuse by high profile figures who have then tried to use NDAs to silence whistleblowers.

“NDAs can be used legitimately in some situations but they should not be used routinely or to prevent someone from reporting sexual harassment, discrimination or whistleblowing at work.

“Our new advice can help employers and their staff understand what NDAs are, how to prevent their misuse and examples where they will not be needed.”

The guidance states that NDA should not be used to stop someone from:

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

If an employer intends use an NDA for any reason, it must:

  • always give a clear explanation of why an NDA is being proposed and what it is intending to achieve
  • ensure the worker is given reasonable time to carefully consider the agreement, as they may wish to seek advice from a trade union or lawyer
  • think about whether it is better to address an issue head on, rather than try to cover it up
  • never use NDAs routinely
  • write agreements in clear, plain English that leaves no room for ambiguity
  • trains managers in using them.

Acas states that organisations should also put a clear and consistent NDA policy in place, which should be regularly reviewed and reported on. Workers should also be allowed to ask questions or seek advice before signing an NDA.

New Equalities and Human Rights Commission guidance on dealing with sexual harassment at work also discourages the use of NDAs where an employee claims to have been treated inappropriately.

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