The use of Non- Disclosure Agreements in discrimination cases

Paula Stuart | Jun 2019

The Women & Equalities Committee of the House of Commons has published its report on the use of non-disclosure agreements (NDA) in discrimination cases. The report begins by stating:

‘It is completely unacceptable that allegations of unlawful discrimination and harassment in the workplace are routinely covered up by employers with legally drafted non-disclosure agreements (NDAs). It is clear that in some cases allegations of unlawful discrimination are not investigated properly—or at all—by employers. The difficulties of pursuing a case at employment tribunal and the substantial imbalance of power between employers and employees, mean that employees can feel they have little choice but to reach a settlement that prohibits them speaking out.’

The report aims to challenge the ‘cover up culture’ and recommends that employers should not have the option to cover up unlawful discrimination at work through the use of NDA’s.

The report makes a number of recommendations including:

  1. ensure NDAs cannot prevent legitimate discussion of allegations of unlawful discrimination or harassment and stop their use to cover up allegations;
  2. require standard, plain English confidentiality clauses when used in Settlement Agreements;
  3. strengthen corporate governance requirements to require employers to meet their responsibilities to protect those they employ from discrimination and harassment;
  4. require named senior managers at board level to oversee anti-discrimination and harassment policies and procedures and the use of NDAs in discrimination and harassment claims.

 A full copy of the report can be found here The Use of Non-Disclosure Agreements in Discrimination Cases

Paula Stuart, Partner in our Employment Team comments – ‘Whilst many of the recommendations are sensible, it remains the fact that many employers will not settle a claim unless there is an NDA.  If the option to use an NDA is removed then we reduce the chances of reaching a settlement that can benefit both parties.  It could also lead to either an increase in litigation putting even more pressure on an already stretched Employment Tribunal service or mean that many individuals are left without the compensation they may deserve.’

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