Make Work Pay: misuse of non-disclosure agreements consultation – our response

Summary of our consultation response

The Equality and Human Rights Commission (EHRC) welcomes the UK government’s proposed measures to ban non-disclosure agreements (NDAs) in workplace harassment and discrimination cases. This statement is a summary of our full response submission.

We agree there will be some limited exceptional circumstances where the use of NDAs may still be appropriate. The aim should be to protect workers’ autonomy and privacy where they genuinely want confidentiality, while preventing employers from using NDAs to silence people or hide discrimination and harassment.

These ‘excepted’ NDAs should only be used at the request of the employee, with several robust safeguards in place. These include:

• workers having access to independent legal advice when choosing to sign an NDA
• written confirmation of the worker’s preference
• workers having the right to withdraw from the agreement without penalty, within 14 days of signing it (a ‘cooling-off period’)
• the NDA being written in a clear, accessible way

Workers should also be able to disclose information about their excepted NDA to:

• lawyers
• law enforcement
• regulators
• victim support services
• trade unions
• close family members
• others who can provide support

We are pleased to see the government taking action on this issue, and we look forward to continued engagement as the legislation progresses.

NDAs should never be used to silence victims. With the right legislation and the right safeguards in place, we have a real opportunity to change that, and to send a clear message that covering up workplace harassment is not acceptable.