The EHRC has published guidance, 'The use of confidentiality agreements in discrimination cases'. It is aimed at clarifying the law on confidentiality agreements in employment and to set out good practice in relation to their use. It's not a statutory code so there's no obligation on courts or employment tribunals to take it into account but it may be used in evidence where relevant.
The guidance states that employers should carefully consider the wording of agreements that seek to stop workers using or discussing confidential information. The wording must make it clear what the worker can or cannot do, and the agreement cannot stop them from speaking about any form of discrimination.
The guidance makes it clear that employers should not put workers under pressure to sign a confidentiality agreement. Workers should be encouraged to take independent legal advice on such agreements, and the guidance makes it clear that workers should always be permitted to have discussions with the police, regulators, lawyers and medical professionals who are bound by an obligation of confidentiality, as well as immediate family members, and a potential future employer, where and to the extent necessary.
Large employers should keep a central record of confidentiality agreements that they enter into, to allow them to monitor potential systemic discrimination issues. The guidance also states that where a settlement agreement has been used to settle a claim, the employer must not treat this as the end of the matter, and must still investigate the allegations where possible, take any reasonable further steps to address the discrimination, and take reasonable steps to prevent discrimination occurring again in future.
