Following allegations that came out of the #metoo movement the spotlight fell on the misuse of confidentiality agreements by employers. The concern was that confidentiality agreements (sometimes known as NDA's) had been used to help cover up serious allegations of sexual harassment, other inappropriate behavior, and even possible criminal actions.
As a result there has been a lot of focus on when confidentiality agreements are appropriate and lawful, and when they are not. To this end, on 17 October 2019 the Equality and Human Rights Commission (EHRC) published guidance - The use of confidentiality agreements in discrimination cases. As the title suggests the guidance is aimed at discrimination cases but the general principles equally apply to the use of confidentiality agreements in relation to other inappropriate behavior, for example criminal wrongdoing.
Confidentiality agreements are common in the employment relationship and it is perfectly proper for an employer to seek to protect confidential information such as customer contacts, trade secrets, intellectual property and sensitive pricing information. There may also be other legitimate reasons why confidentiality agreements are used. The problem arises if the employer attempts to use confidentiality agreements to prevent workers raising serious concerns, such as allegations of sexual harassment; puts the worker under duress to sign the agreement; or, seeks to prevent lawful whistleblowing, reporting of criminal activity, or making other disclosures required by law.
The guidance sets out an overview of the relevant law, highlights good practice, and contains some practical examples to illustrate its key points. It is important that confidentiality agreements are used properly by employers and that when used, they are worded carefully. This guidance is therefore helpful for employers and their advisors.
This guidance will help employers to understand how and when they can use confidentiality agreements legitimately, and when these agreements will not be enforceable.