Confidentiality clauses, or nondisclosure agreements (NDAs), have become a topic of significant interest because of how they can be used to prevent employees from reporting allegations of sexual harassment or other similar misconduct.
There has been increased pressure to ban such agreements following the #MeToo movement. This Inbrief explains the current legal restrictions, guidance, and best practice in relation to NDAs covering harassment or discrimination.
There are a number of current legal requirements for NDAs, and restraints on their use.
All NDAs which try to prevent a protected disclosure are void and unenforceable. This applies in England, Wales, and Scotland.
The test for whether someone has made a protected disclosure has several steps. To qualify for protection, the disclosure must be about one of a list of topics, including breach of a legal obligation, which is likely to cover unlawful harassment and discrimination. The worker making the disclosure must have a reasonable belief that it is in the public interest. There are also requirements about who the disclosure must be made to in order to be protected, which in most cases is the employer rather than external third parties. For more detailed information on all applicable tests, see our Inbrief on whistleblowing.
In practice, many whistleblowing disclosures about harassment or discrimination are likely to meet the test, especially if they...
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