The truth about ‘Non-Disclosure Agreements’ and ‘Confidentiality Clauses’

Insights - 27/08/2019

‘Non-Disclosure Agreements’ (NDA’s) and Confidentiality Agreements have been mentioned in the news a lot recently particularly in connection with the #MeToo movement.

These types of agreements can have their legitimate uses, for example businesses may ask individuals to sign up to one before starting a big project to restrict the disclosure of sensitive information that could undermine the deal if it were released.

It can be unnerving though when presented with one and reports over the last few years have led to fears that such agreements are misused.

To ensure individuals are aware of their rights the Law Society has produced a guidance note, which can be accessed here.

Confidentiality clauses can be included in discrete ‘NDA’s’ but are also often included in settlement agreements between employers and employees.

NDA’s and confidentiality clauses are not intended to suppress an employee’s ability to:

  • report a suspected criminal offence to the police or any law enforcement agency;
  • co-operate with an investigation by HMRC or a regulator regarding any misconduct, wrongdoing or serious breach of regulatory requirements;
  • comply with an order to disclose or give evidence in tribunal or court proceedings;
  • speak to a professional providing them with medical services nor usually professionals providing them with therapeutic, counselling or support services; or
  • make a protected disclosure to an appropriate prescribed person, for example in relation to miscarriages of justice, health and safety risks, damage to the environment and breach of professional obligations;

Given the seriousness of these types of clauses, it is best to seek independent legal advice on any agreement including them and address any potential concerns before signing it. Sometimes employers will contribute towards your legal costs of seeking such advice.

Should you have any questions on the issues set out here contact your usual adviser in the employment team or Emma McLoughlin at [email protected] or by phone on 020 8971 1088.

Disclaimer:

Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.