NDAs: Good intentions & their consequences

The risk when recommending reform is of unintended consequences. Much of the recent report of the Women and Equalities Committee into non-disclosure agreements in discrimination cases illustrates this truth (‘The use of non-disclosure agreements in discrimination cases’, 11 June 2019 HC1720).

The purpose of the report was to examine the ill effects of non-disclosure agreements (NDAs) in settlements of claims of sex discrimination. Occasionally the term discrimination is used in its widest sense but the principal occupation is with allegations of sex discrimination and harassment made by women. The report is best regarded as the opinion of those who had made up their mind before work began. Judges asked to make decisions with the same background would recuse themselves. Their likely conclusions were apparent from their report in 2018 where they recommended that tribunals ‘should be able to award punitive damages and there should be a presumption that tribunals will normally require employers