New guidance for employers on using confidentiality agreements in discrimination cases

The Equality and Human Rights Commission (EHRC) has released new guidance on the use of confidentiality agreements in discrimination cases.

The use of confidentiality agreements and non-disclosure agreements by employers has been a hot topic in recent years. Ever since the Harvey Weinstein scandal broke, the government has been keen to tackle the misuse of confidentiality agreements. Whilst the new EHRC guidance does not have any legal force, the government has committed to introduce new legislation governing the use of confidentiality agreements.

The proposed legislation will seek to prohibit confidentiality agreements that prevent disclosures to the police, advisers and healthcare professionals. Employers will also be obliged to clearly explain the scope of the confidentiality restrictions within the employment contract or settlement agreement in which they sit.

The new EHRC guidance covers the use of confidentiality agreements in claims of discrimination, harassment and/or victimisation. The guidance applies to an array of workers, including agency workers and job applicants, across England, Scotland and Wales.

The guidance outlines some important dos and don’ts:

  • don’t ever ask a worker to sign a confidentiality agreement as part of their employment contract which would prevent them from making a discrimination claim against you in the future
  • don’t use a confidentiality agreement to prevent a worker from discussing a discriminatory incident that took place in their workplace unless, for example, the victim has requested confidentiality around their discriminatory experience
  • don’t ever use a confidentiality agreement to stop employees from whistleblowing, reporting criminal activity or disclosing other information as required by law
  • do always give your worker time to read and fully understand the terms of a confidentiality agreement (the guidance suggests no less than 10 days)
  • do always give your worker a copy of the confidentiality agreement
  • do make sure the confidentiality agreement spells out the details of exactly what information is confidential
  • do monitor the use of confidentiality agreements in your workplace

The guidance advises that larger employers maintain records of the confidentiality agreements that they have entered into, so as to monitor potential systemic discrimination. Any such database must also comply with data protection laws.

It also recommends that, where a claim has been settled under a settlement agreement, the employer must not consider the matter closed. Rather, to provide itself with a defence to future claims, the employer should still, where relevant, investigate the allegations, take reasonable further steps to address the discrimination, and take actions to prevent a reoccurrence in the future.

Whilst the guidance is non-statutory, it could still be used as evidence in Employment Tribunal hearings. Therefore, HR teams and in-house lawyers should review the guidance and consider the adequacy of their existing documents and practices.

The full guidance can be seen here

If you have any questions about discrimination, settlement agreements or confidentiality, please do not hesitate to contact our expert employment team on 0161 941 4000 or by email.