Before the government called a general election, there was some traction on protecting those who are most vulnerable when entering into non-disclosure agreements and confidentiality agreements. This had been a pressing agenda item for the government for some time, with input from the Equality and Human Rights Commission and the House of Commons Women and Equalities Select Committee. The latest position arrived at was that advisers and employers would both be required to comply with new duties and obligations. The general election appears to have halted this, but employers should not ignore the changes on the horizon.
EHRC guidance
The Equality and Human Rights Commission (EHRC) published guidance on 17 October 2019 about the use of confidentiality agreements in discrimination cases. This sets out good practice for employers and clarifies the law on the enforceability and legality of the agreements. Employers should make it clear to employees what they can and cannot do, emphasising that the agreement does not stop them from speaking out about any form of discrimination. The agreements should permit employees to have discussions with the police, regulators, lawyers and medical professionals. Such individuals would be bound by a duty of confidentiality. In addition, employees should be able to have discussions with immediate family members and a potential future employer, where and to the extent necessary. Further, employers should ensure that they do not put employees under pressure to sign the agreement and should encourage them to take independent legal advice on the agreement.
The guidance also recommends that large employers keep a central record of completed confidentiality agreements. The purpose of this is to enable monitoring of any repetitive or systemic discrimination issues. In this regard, the guidance also recommends that employers must not treat a binding settlement agreement as the end of a matter, but should still investigate the allegations and take any appropriate steps to prevent future discrimination. A tribunal could consider any action or inaction when an employer wishes to rely on the “reasonable steps” defence in future claims.
The EHRC will need to review its guidance when the government introduces new legislation restricting the use of confidentiality clauses. The introduction of such legislation was a commitment made by the government in its July 2019 response to its consultation on the use of non-disclosure agreements in workplace harassment and discrimination cases.
