ACAS has published new guidance on the use of non-disclosure agreements (NDAs). This is intended to help employers and workers understand exactly what an NDA is and when it may be appropriate or inappropriate to use one. It is relevant to any type of case, and not limited to those involving discrimination or harassment.
The guidance, published on 12th February 2020, confirms that an NDA cannot prevent whistleblowing, nor the reporting of a crime to police. Further examples given of situations in which NDAs should not be used include to cover up misconduct, to avoid addressing workplace issues or to mislead individuals.
ACAS urges employers to consider NDAs on a case-by-case basis to determine if they are definitely needed and whether they would cause any serious moral or ethical issues or any other negative outcomes.
Lastly, the guidance gives some information about situations in which it may be appropriate to use an NDA. These include:
- To keep some details of an agreement confidential (for example, the settlement figure in a settlement agreement), or to keep the entire existence of an agreement confidential.
- To protect information belonging to an organisation, including where an organisation needs special protection for intellectual property or client information, and to keep facts known by a worker about an organisation confidential.
- To prevent derogatory statements being made about an employer or worker, or to help protect someone if the details of a dispute became known.
Where employers are concerned about using an NDA, ACAS advises that they should seek legal advice.