Acas has today released new guidance on the drafting, use, misuse and limitations of non-disclosure agreements (NDAs) and confidentiality clauses.
Whilst not legally binding, the 22-page document calls upon current legislation and understanding to provide practical ways in which to avoid the misuse of NDAs in the workplace. With scrutiny continuing to be placed on NDAs and confidentiality clauses, and the government having already previously pledged new legislation in this area, this new guidance provides a helpful reference point for organisations.
Acas reaffirms that NDAs and confidentiality clauses should never be used to cover up inappropriate behaviour and wrongdoing, such as harassment. They should also not be seen as a way to stop claims of whistleblowing or other forms of discrimination, with the guidance outlining that organisations should already have clear policies in place for responding to these situations. Businesses should also avoid implementing identical agreements for all staff regardless of their role.
When seeking to introduce an NDA or confidentiality clause, organisations are encouraged to consider if such a clause is necessary and not to use them as a ‘standard’ approach. If it is deemed that such a clause is necessary, organisations should undertake the following:
- provide a clear explanation of why this clause is being proposed and what it intends to achieve
- ensure that the clause is written in clear, plain English that leaves no room for ambiguity
- make it clear that the clause does not take away rights to make a claim to the employment tribunal (ET), aside from situations where a lawful settlement agreement is being signed
- make it clear that these clauses do not stop workers from seeking medical or professional advice.
During any negotiation concerning the use of a confidentiality clause, organisations should consider the nature and extent of the confidentiality and how these may be impacted upon by the situation. Although there is no legal requirement to permit this, the worker being negotiated with should be permitted to bring a work colleague or trade union representative to any potential discussion. They should also be provided a minimum of 10 days to consider the clause before signing an agreement.
The guidance also outlines limitations to the use of NDAs and confidentiality clauses. Specifically, it should be taken into account that workers may want or need to share details of the agreement with certain bodies, such as:
- their supervisor, manager or relevant colleagues
- immediate family
- trade union representatives
- legal representatives
- medical and healthcare professionals, such as Occupational Health,
- prescribed bodies or persons under whistleblowing legislation
- police or other law enforcement bodies.
Speaking on the guidance, Acas chief executive, Susan Clews, outlines that whilst NDAs can be used ‘legitimately in some situations’ they should not be used to prevent someone reporting on issues such as harassment at work. She goes on to state that this new guidance ‘can help employers and their staff understand what NDAs are, how to prevent their misuse and examples where they will not be needed’.