Acas releases new guidance on how to prevent NDA misuse

The Advisory, Conciliation and Arbitration Service (Acas), which provides free and impartial advice to employers and employees on workplace relations, has published some new guidance on the use of non-disclosure agreements (NDAs) in cases that involve workplace sexual harassment or discrimination.

The guidance, published today (February 10), is there to help employers and workers understand what NDAs are and how to prevent their misuse.

Acas say that NDAs are sometimes used to restrict workers from disclosing sensitive commercial information or trade secrets to people outside their place of work.

But employers should consider whether one is needed in the first place as their misuse can be very damaging to the organisation.

As part of the guidance, Acas is clear that NDAs cannot be used to stop someone from reporting discrimination or sexual harassment at work or to the police, whistleblowing or disclosing a future act of discrimination or harassment.

The guidance also states that NDAs should not be used to hide a problem or brush it under the carpet.

If an employer still wishes to use an NDA, then Acas advice states that employers should always give a clear explanation of why one is being proposed and what it is intending to achieve, ensure that a worker is given reasonable time to carefully consider it, think about whether it is better to address an issue head on and never use NDAs routinely.

Acas chief executive, Susan Clews, said: “The news has reported on victims coming forward that have alleged appalling abuse by high profile figures who have then tried to use NDAs to silence whistleblowers.

“NDAs can be used legitimately in some situations, but they should not be used routinely or to prevent someone from reporting sexual harassment, discrimination or whistleblowing at work.

“Our new advice can help employers and their staff understand what NDAs are, how to prevent their misuse and examples where they will not be needed.”