Further inquiry into the use of non-disclosure agreements in the workplace

Yesterday was the final day for public submissions to the Women and Equalities Committee’s (WEC) inquiry into the use of non-disclosure agreements (NDAs) in harassment and discrimination cases. This new inquiry follows on the heels of the WEC’s report on sexual harassment in the workplace, in which it called for the use of NDAs to be “cleaned up” and for the misuse of NDAs in the context of sexual harassment to become an offence. We also commented on this report in our August newsletter.

This new inquiry is, however, wider in its remit, looking at the use of NDAs in cases where any form of harassment or other discrimination is alleged.
The WEC has said that its focus will include:

  • Are there particular types of harassment or discrimination for which NDAs are more likely to be used?
  • Should the use of NDAs be banned or restricted in harassment and discrimination cases?
  • How easy is it for employees and employers to access good-quality legal advice on NDAs?
  • Do some employers use NDAs repeatedly to deal with cases involving a single harasser? If so, is appropriate action being taken to deal with the behaviour?
  • What should the role of boards and directors be?
  • Should employers be obliged to disclose numbers and types of NDAs?

We will await the new WEC report, but for the time being it seems that the use of NDAs will remain commonplace. However, the risk of adverse publicity will continue to grow together with the spotlight on this issue. As ever, we urge employers to make sure that they have in place appropriate policies and training to prevent harassment and discrimination occurring in the first place.

Tom Fancett

About Tom Fancett

Tom has experience acting for both employers and employees, advising on the full spectrum of contentious and non-contentious matters. His experience includes advising on large commercial transactions, including redundancy and TUPE issues; undertaking buy side and sell side due diligence exercises into the employment aspects for multiple commercial transactions; coordinating multijurisdictional projects; defending Employment Tribunal claims in relation to unfair dismissal, disability and sex discrimination and whistleblowing; advising on day-to-day HR and disciplinary issues; drafting and negotiating settlement and service agreements; and reviewing company handbooks and template employment contracts.

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