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Non-disclosure agreements (NDAs) in sexual harassment cases

Posted on February 16 2022 at 09:30

Black and white image of a hand signing a document

Recently there has been lots of discussion about women who have experienced sexual harassment at work being asked to sign a non-disclosure agreement (NDA) as part of a settlement agreement, preventing them from speaking out about their experiences.

NDAs may be appropriate in some circumstances, for example to protect a business’ trade secrets. However, they should not be used to stop someone from reporting sexual harassment or any form of discrimination.

In this blog we will look at:

What an NDA is
Why the misuse of NDAs is concerning
What you can do if you have been asked to sign one

What is an NDA?

Non-disclosure agreements (NDAs), also known as confidentiality clauses, are legally binding agreements that prevent a person or organisation from sharing information. An NDA could be:

Included in an employment contract,
Included in a settlement agreement or Acas settlement form (‘COT3’), or
A separate legal document.

NDAs are frequently used when reaching an agreement about employment disputes. They can be used to keep certain details of an agreement, or even the fact that an agreement has been reached, confidential.

#MeToo Movement

The #MeToo movement raised public awareness of the misuse of NDAs, exposing their use to protect high profile individuals. Although #MeToo shed light on the topic, NDAs have been misused for years by many industries, not only to protect high profile individuals. The importance of ending the misuse of NDAs in cases of sexual misconduct, racism, pregnancy discrimination and other human rights violations has been highlighted by campaigners such as Professor Julie Macfarlane and Zelda Perkins, and their change-making Can’t Buy My Silence Campaign.

Why this is a problem in sexual harassment cases?

The misuse of NDAs in the context of sexual harassment is concerning for many reasons, not least that:

NDAs can be used to cover up discrimination as well as ongoing misconduct.
They protect powerful individuals and organisations by silencing and isolating survivors.
NDAs can make victims/ survivors feel that they can’t be honest with their friends and family, as they may not be able to share details about what has happened to them.
Victims/survivors often feel pressured to sign an NDA and worry that they must sign one to reach an agreement with their employer. It has become standard practice to include them in settlement agreements but, despite how it may seem (or what your employer may tell you), they are not required and victims/survivors do not have to sign one.

What should you do if you’ve been asked to sign an NDA?

If you’ve been asked to sign an NDA, it may be useful to speak to a lawyer to get advice and assistance. A lawyer will be able to provide you with advice about whether the terms of the agreement are appropriate, or whether an NDA is necessary at all.

If you decide you want to sign an NDA, you should be given reasonable time to think about it as well as an opportunity to get independent legal advice before signing it. Otherwise, it may not be legally binding.

It is unlawful for an employer to use an NDA to prevent you from reporting a criminal offence, whistleblowing, or doing anything required by law, such as giving evidence to a court, a tribunal, a regulator or the police.

If you have already signed an agreement and are unhappy with the terms, you can still get legal advice about the terms of the agreement.

How we can help

Our sexual harassment service is run by expert solicitors who can provide you with information on your rights. We run a legal helpline, as well specific legal surgeries for women who have experienced sexual harassment. These services are free, and you can find out more about them on our website.