Hot on the back of the #MeToo movement, the Equality and Human Rights Commission (EHRC) has published some non-statutory guidance on the use of confidentiality or non-disclosure agreements in discrimination cases. The guidance confirms that confidentiality clauses can be used in employment contracts to protect a business’s confidential information. However, they shouldn’t be used to stop a worker pursuing a discrimination claim in relation to future acts – those clauses will not be enforceable.
The guidance discourages the habitual use of gagging clauses when settling discrimination claims. It suggests they are only used in specific circumstances such as a case where a worker does not want the details of their discrimination case to become public. The guidance also advises employers to tailor the clause to the individual case rather than using a standard template. The guidance also suggests that employers might still need to investigate claims which are settled to show they have taken steps to prevent discrimination in the workplace.
The aim of the guidance is to ensure that discrimination in the workplace is rooted out. Employers should create an environment where employees feel they can speak out against discrimination and know that they will be supported. If people know they can raise issues, which will be taken seriously, gagging clauses are unlikely to be needed.
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