Non-disclosure Agreements (NDAs), or 'confidentiality clauses', have been in the news recently. An employer might use an NDA to prevent an employee from sharing information or to keep a sum of money agreed as part of a settlement confidential.
There are legitimate reasons for using an NDA such as protecting company secrets or to keep details of a settlement confidential after a dispute. However, it is becoming clear that employers are abusing the use of NDA's to the extent that ACAS has issued guidance. An NDA must not be used to stop anyone from whistleblowing or reporting a crime to the police. They should not be used to stop an employee from reporting discrimination, harassment or sexual harassment law or to cover up inappropriate behaviour or misconduct
ACAS suggests that if an employer wants to use and NDA, then they should
- always give a clear explanation of why one is being proposed and what it is intending to achieve
- ensure that a worker is given reasonable time to carefully consider it as they may wish to seek trade 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
- never use NDAs routinely
NDAs should be written in clear, plain English that is simple to understand and leaves no room for ambiguity. Managers involved with NDAs should be well trained in using them. Businesses should have a clear and consistent policy that is regularly reviewed and reported on.
A worker should be able to ask questions and seek advice before agreeing an NDA. A staff member can also seek advice if they have concerns over an NDA they have already signed. Sources of available help include legal representatives, trade union representatives, the police and healthcare professionals.
To discuss this or any other employment matter, contact us.