EHRC publishes new guidance on the use of confidentiality agreements in discrimination cases

EHRC publishes new guidance on the use of confidentiality agreements in discrimination cases

The guidance focuses on the use of confidentiality agreements that could stop workers speaking out about any act of discrimination, harassment and victimisation which contravene the provisions of the Equality Act 2010. The purpose of the guidance is to provide employers with a set of good practice rules and to clarify the law regarding the enforceability and legality of confidentiality agreements for both employers and workers. The guidance also explains what information can legitimately be protected under confidentiality agreements.

In their guidance document, EHRC explains situations where confidentiality agreements will not be enforceable. These include:

  • wording contained in confidentiality agreements which prevents employees from pursuing claims for acts of discrimination which occur after the date of signature of the agreement;
  • where an employee signs a confidentiality agreements under duress;
  • where the confidentiality agreement seeks to prevent lawful whistleblowing, the reporting of criminal activity or making any other disclosures required by law.

The EHRC suggests that employers use the good practice rules when using confidentiality agreements. This include, but are not limited to the following:

  • consider on a case-by-case basis whether a confidentiality agreement or confidentiality provisions are required, and if so, draft these clauses/agreements to fit the individual circumstances;
  • clear wording/language explaining what workers can and cannot discuss;
  • explaining clearly that the confidentiality agreement does not prevent an employee discussing any form of discrimination, harassment or victimisation;
  • not placing pressure on employees to sign confidentiality agreements;
  • the employer ensuring that the worker is supported and represented during the negotiation stages, even if this occurs before legal advice is sought by the worker; and
  • keeping track of the use of settlement agreements with confidentiality provisions to ensure that these are not being “misused… or overused to mask systematic problems.” In the case of large employers it is recommended that they keep a central record of confidentiality agreements.

Whilst the guidance itself is not a statutory code meaning that employment tribunals or courts are not required to take it into account, it may still, where relevant, be used as evidence in legal proceedings. Employers should therefore bear this guidance document in mind when entering into settlement agreements with workers to settle cases where the worker may have been subject to discrimination in the workplace. The EHRC also recommends that those responsible for drafting and negotiating settlement agreements be provided with a copy of the guidance.