The report was produced in response to growing public awareness of the potentially unethical use of NDAs, and within the context of a review of Ireland’s Equality Acts.

It examines experiences of NDA use, with a specific focus on cases of alleged sexual harassment or discrimination within employment relationships in Ireland and other jurisdictions (UK, USA, Canada and Australia).

According to the report, NDAs are commonly used in a range of contexts, including as a condition of employment; however, there are significant research and data gaps relating to the use and prevalence of NDAs in cases of sexual harassment and discrimination both in Ireland and internationally.

The Report highlights that NDAs signed at the beginning of employment may prevent signatories from discussing sexual harassment, discrimination, or trauma prior to their having experienced it. Moreover, NDAs can allow patterns of abuse to continue undetected within an organisation or can facilitate the transfer of perpetrators from one organisation to another For these reasons, it seems to be clear that some change is needed. However, there are differing perspectives on the best legislative response to the challenges presented by the use of NDAs in potentially unethical circumstances. Some favour the effective prohibition of NDAs in cases of sexual harassment or discrimination, while others favour the regulation of NDAs but still see an important role for them, considering that some people could only feel comfortable reporting sexual harassment or discrimination if they know that the complaint will be dealt with confidentially.

To date, The Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 proposes to limit an employer’s ability to enter into an NDA with an employee in circumstances where the employee has experienced or made allegations of sexual harassment or unlawful discrimination and the NDA has the purpose or effect of concealing the details relating to the complaint.

It is currently being considered by the upper house of the Irish Parliament, stage three, so it is not clear if it will be approved in its actual formulation.

In the meanwhile, it is important for employers to verify that their confidentiality and non-disclosure clauses do not have any potential unethical implications if used in circumstances of a sexual harassment or discrimination dispute.