25 Feb 2020
Acas has released new guidance on non-disclosure agreements (NDAs). It covers the drafting, use, misuse and limitations of NDAs and confidentiality clauses.
The document isn’t legally binding. It calls upon current legislation and understanding to provide practical ways to avoid the misuse of NDAs in the workplace.
Acas guidance on the use of NDAs
What does this mean?
NDAs have come under increasing scrutiny these past couple of years. The government has already pledged new legislation in this area. But, this new guidance provides a helpful reference point for organisations to follow.
What does the new guidance tell us?
It reaffirms that NDAs and confidentiality clauses should never be used to cover up inappropriate behaviour and wrongdoing. This includes harassment. They should also not be seen as a way to stop claims of whistleblowing, or discrimination. The guidance outlines that organisations should already have clear policies in place for responding to these situations. You should avoid implementing identical agreements for all staff regardless of their role.
If you want to introduce an NDA or confidentiality clause, consider if such a clause is necessary. Don’t fall into the habit of using them as a ‘standard’ approach. If it is necessary, you should take the following steps:
- 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). The exception to this is a situation where a lawful settlement agreement is being signed
- make it clear that these clauses do not stop workers from seeking medical or professional advice.
When considering the use of a confidentiality clause, you may negotiate terms with the employee(s). Consider the nature and extent of the confidentiality and how it will impact your staff.
There’s no legal requirement, but you should allow the employee(s) affected to be accompanied during negotiations. This could be a work colleague or a trade union representative. You should also provide them with a minimum of 10 days to consider the clause before signing.
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.
Acas CEO, Susan Clews outlines that NDAs can be used ‘legitimately in some situations’. However, they shouldn’t be used to prevent someone reporting on issues such as harassment. She goes on to state that this new guidance ‘can help employers and their staff understand what NDAs are. It will also help prevent their misuses and provide examples where they’re not needed.
NDAs can be complex. The Acas guidance sheds new light on their use, but how should you interpret and implement it in your workplace? If you're even slightly uncertain, it's worth getting reassurance. Call Croner for support today on 01455 858 132.
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