Legal Update - Gagging Clauses
3rd September 2019
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It is important that workers understand their rights in relation to non disclosure agreements (NDAS) and confidentiality  agreements.  What should employees do if they are asked to sign such an agreement in an employment situation?    

The emergence of high profile cases, often involving sexual harassment claims, has led to legitimate fears of misuse of such agreements. 

Workers quite rightly feel they are in jeopardy of losing their employment law protection. 

There appears great uncertainty and confusion with a myriad of misconceptions. 

For example, some people do not realise that a confidentiality clause cannot stop them from talking to the police, a regulator or an employment tribunal.    

These are the common scenarios:   (1) Employer asks a worker to sign a NDA  This could be at the start of an employment or project to protect business secrets or sensitive information from becoming public. 

NDAs are also contained in settlement agreements which allows an employer and worker to resolve a dispute confidentially without going to an employment tribunal or court.    

As NDAs place legal obligations on you it`s best to get independent legal advice as soon as possible before you sign any document.  A solicitor will advise you on whether you should sign the document and what it should contain.     (2) Confidentiality A good agreement meets the needs of all parties. 

It should also be fair and reasonable.  A worker cannot be forced to sign a NDA if they do not accept the terms on offer. 

This is why it`s important to get independent legal advice.  A worker needs to know:   (a) Who they can talk to (including family members and medical professionals);   (b) If there are any time limits on the confidentiality;   (c0 How you can talk about your role in future job interviews.   (3) What NDAs cannot stop you from doing   A confidentiality agreement is not legally binding if it stops you from talking to the police or a regulator about issues between you, your employer or someone at work.  It is also not legally binding if you are not given reasonable time to think about the agreement or to be able to get independent legal advice.  

You should always ask for a copy of the NDA so you have a record of what has been agreed.  

NDAS and confidentiality clauses cannot be used to stop whistleblowing in the public interest about sexual or racial harassment which is illegal in any event.  Whistleblowing is a complicated area of law and workers are advised to get independent legal advice.    

For more information:   ACAS (Advisory, Conciliation & Arbitration Service) - provides support and services for employers and employees to help prevent workplace problems   Protect - aims to stop harm by encouraging safe whistleblowing   If you are a member of a trade union you can get support from their lawyer.

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Ian Henery

Member since: 4th February 2019

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