Recruiters urged to resist routine NDA use as Acas publishes new advice

As Acas publishes new advice aimed at demystifying non-disclosure agreements (NDAs) and preventing their misuse, recruiters have been urged to resist routine use of such agreements to cover up unsavoury behaviour.

The advice, published this morning by the workplace intermediary, makes clear that NDAs cannot be used to stop someone from:

  • reporting discrimination or sexual harassment at work or to the police
  • whistleblowing
  • disclosing a future act of discrimination or harassment.

Acas adds NDAs should not be used to hide a problem or brush it under the carpet. If an employer still wishes to use an NDA then Acas advice is that employers should:

  • always give a clear explanation of why one is being proposed and what it is intending to achieve
  • ensure that a worker is given reasonable time to carefully consider it as they may wish to seek trade union or legal advice on its implications
  • think about whether it is better to address an issue head on rather than try to cover it up
  • never use NDAs routinely.

Acas further advises that NDAs be written in clear, plain English, that is simple to understand and leaves no room for ambiguity. Managers who are involved with these types of agreements should be well trained in using them and businesses should have a clear and consistent policy around them that are regularly reviewed and reported on.

According to the guidance, workers should also be able to ask questions and seek advice before agreeing an NDA. A staff member can also seek advice if they have concerns over an NDA that they have already signed. Sources of available help include legal representatives, trade union representatives, the police and healthcare professionals.

Commenting on the advice, Stephen Jennings, partner and solicitor at Tozers Solicitors, told Recruiter while the guidance doesn’t change the law, it serves as a reminder to all employers that NDAs will be inappropriate in many cases and may not be legally binding if they are drafted too widely. 

“Recruitment agencies need to take particular care, not just in respect of their own workers but also where workers they place are asked to sign NDAs. Agencies could find their own reputations under attack if they are seen to be facilitating an inappropriate NDA. Agencies should avoid any routine use of NDAs and, where these are proposed, should ensure they are only used to protect commercial secrets and not hide unsavoury behaviour.”

Melanie Stancliffe, partner at Cripps Pemberton Greenish, described the guidance as a positive step to establish the boundaries for advisers seeking to protect their clients’ reputations and the tackling of unacceptable workplace behaviours. 

“NDAs are currently used in the workplace to keep matters leading up to the agreement confidential. The individuals who agree with them are limiting their rights to speak out against the harassment, bullying and discrimination except to the proper authorities or to get medical support. This guidance will clarify the acceptable use of NDAs in the workplace and allow prospective employers and recruiters to know what can be shared with the hirer.”

Dr Sybille Steiner, partner at law firm Irwin Mitchell, says given the negative publicity concerning the misuse of NDAs last year, the new guidance is very welcome. 

“Although NDAs can sometimes be used to restrict workers from disclosing sensitive commercial information or trade secrets to people outside their place of work, recruitment agencies and any employer should consider whether one is needed in the first place as their misuse can be very damaging to their organisation. Employers, including recruitment agencies must make sure that their managers are well trained in using NDAs and should have a clear and consistent policy around NDAs which should be regularly reviewed and reported on.”

And Barry Ross, director at law firm Crossland Employment Solicitors, told Recruiter he feels the guidance recognises that there are legitimate reasons where both employers and employees want to use an NDA to ensure that both parties have a clean break and confidentiality is in everyone’s interests. 

“In doing so, it takes a more pragmatic view of NDAs than can sometimes be portrayed in the media.

“Acas takes time to explain that it is important to distinguish between genuine use and situations where an NDA may be misused or used to take advantage of a whistleblower or someone who has been discriminated against or sexually harassed.

“They make it clear that individuals have a right to report discrimination or sexual harassment in the workplace and that NDAs are not there as a tool to prevent workers from making protected disclosures or ‘blowing the whistle’.

“The guide also importantly recognises that while an NDA may be used by a company, it is not an excuse to simply brush any organisational problems under the carpet and these must be addressed by them. In this day and age, negative press around NDAs being used incorrectly or in an abusive matter is likely to have grave consequences for a recruitment company’s profitability, as well as their ability to hire top talent, not least because the younger generation of employees want to ensure more than ever that their employer is aligned to their moral views.
 
“The takeaway for recruitment companies is that there’s no reason to be afraid of using NDAs, but it is important not to use them as a blanket response to resolve problems. Recruiters should ensure that they are doing what they can to promote and enforce equality and diversity in the workplace as well as empower employees to blow the whistle in genuine and appropriate circumstances.”

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