Guidance updated on non-disclosure and confidentiality agreements
The Equality and Human Rights Commission (EHRC) has published some guidance on the use of confidentiality/non-disclosure agreements in discrimination cases.
This non-statutory guidance confirms that confidentiality clauses can be used in employment contracts to protect an employer’s confidential information, but that they shouldn’t be used to stop an employee bringing a discrimination claim in relation to discriminatory acts in the future – such clauses would not be enforceable.
The habitual use of gagging clauses in the settlement of discrimination claims is discouraged by the guidance. It suggests that they should only be used in specific circumstances, such as to preserve anonymity. The guidance also suggests that when drafting gagging clauses employers should tailor them to the individual case. The guidance also suggests that there might still be a need for employers to investigate claims which have been settled to demonstrate that they have taken all reasonable steps to prevent discrimination in the workplace.
The aim of the guidance is to root out discrimination in the workplace. It is important for employers to create an environment where employees feel they can speak out against discrimination and should they decide to do so they know that they will be supported. If people know they can raise issues, which will be taken seriously, gagging clauses are unlikely to be required.
If you have any questions about this new guidance, contact Marie Allen on [email protected] or call 01473 298126.
