Don’t use NDAs to silence sexual harassment claims, arbitration service warns

Avatar photo

By Thomas Connelly on

Fresh guidance looks to address misuse of gagging orders

Non-disclosure agreements (NDAs) must not be used to prevent someone from reporting sexual harassment at work, arbitration service Acas has warned.

The fresh guidance published this week aims to help employers and workers understand what NDAs are and how to prevent their misuse.

Acas says that they should not be used to stop someone from reporting discrimination or sexual harassment at work or to the police; disclosing a future act of discrimination or harassment; and whistleblowing (workers who expose wrongdoing in the workplace).

The advice goes on to warn that NDAs, also known as ‘gagging orders’ or ‘hush agreements’, should not be used as a tool by which to “hide a problem or brush it under the carpet”.

While recognising times when the use of NDAs are appropriate, such as restricting workers from disclosing sensitive commercial information, Acas urges employers to consider carefully whether one is needed in the first place as their misuse can be “very damaging” to an organisation.

The 2020 Legal Cheek Firms Most List

If deemed appropriate, the guidance states NDAs should be written in “clear, plain English that’s simple to understand and leaves no room for ambiguity”.

“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,” Acas chief executive Susan Clews said. “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.”

The Solicitors Regulation Authority (SRA) previously warned lawyers not to become their client’s “hired guns” and include clauses that seek to prevent lawful disclosure of issues such as discrimination, harassment or even sexual abuse.

Sign up to the Legal Cheek Newsletter

Related Stories

Don’t become ‘hired guns’ for clients, regulator warns solicitors

SRA reminds lawyers to adhere to professional obligations, particularly when drafting NDAs

Nov 28 2018 8:50am

‘A cosy old boys’ network’: MP grills SRA over its handling of Weinstein NDA scandal

Regulator says there is an investigation under way into Allen & Overy, the firm that drafted the document

Apr 25 2018 2:59pm

MPs demand clampdown on lawyers who help bosses cover up sexual harassment

Regulators like the Law Society not doing enough on dodgy non-disclosure agreements, report says

Jun 11 2019 8:38am