What can I disclose after signing a non-disclosure agreement (NDA)?

Non-disclosure agreements have been featured heavily in the news recently due to their controversial nature, and the legality of them is currently being questioned. Whilst NDAs are predominantly used by employers to protect confidential business information, there are certain things in which you cannot be prevented from disclosing, such as information that is already publicly available. Here, Howard Robson, Partner in our Employment Law team, discusses what else you may be able to disclose, some potential incoming changes to NDAs and why the use of them can be controversial.

What is a non-disclosure agreement?

NDA’s are agreements which stop you from disclosing certain confidential information to the wider public. They can be used in many instances, but most commonly in an employment context in the terms of a settlement agreement.

What can I disclose after signing a non-disclosure agreement?

Even after signing an NDA, there are a number of things that you can still disclose, such as:

• information that is already publicly available,
• information that was disclosed by your employer to you before you signed the NDA,
• information that you already know from another source,
• if you are reporting a criminal offence,
• if you are giving evidence to a regulator, for example HM Revenue & Customs or the Solicitors Regulatory Authority.

NDAs may not be binding if you have not had independent legal advice before signing, or in some whistleblowing cases. In a settlement agreement, there is usually a provision which allows you to discuss confidential matters with your legal advisor and close family.

Why are NDAs controversial?

NDA’s have been in the news recently as they are common in settling harassment allegations. Many people believe they should not be used as they cover up unlawful activity.

Many employees do not pursue their cases of harassment and discrimination at an Employment Tribunal because it can be a lengthy and expensive process and so they may feel they have little choice but to sign a confidentiality agreement. This means that confidentiality is being traded for things such as references and remedial action to tackle discrimination, which employers should be providing as standard.

An example of this is Sir Philip Green using NDAs to buy the silence of five members of staff who accused him of sexual and racial harassment.

What is the future for NDAs?

A consultation into banning the use of confidentiality clauses in covering up workplace harassment and discrimination closed on 29 April 2019; feedback is currently being analysed, but the committee’s report calls for tighter controls to prevent inappropriate and unlawful behaviour. These include:

• new legislation ensuring that NDAs cannot prevent employees having a “legitimate discussion” about allegations which would allow staff to gather evidence to support claims of harassment or discrimination,
• using plain English and non-derogatory language in confidentiality clauses which should also specify what information can and cannot be shared and with whom,
• strengthening the ways companies are controlled to make sure employers meet their responsibilities to protect staff from discrimination and harassment,
• organisations naming a senior manager at board level to oversee anti-discrimination and harassment policies and procedures and the use of NDAs,
• increasing compensation for victims to encourage organisations to tackle harassment,
• increasing the time limit for bringing a claim to an Employment Tribunal from three months to six months,
• requiring employers to pay the costs employees encounter when seeking legal advice, and
• a clear exclusion from confidentiality clauses for all disclosures to the police, and whether disclosures to any other people or organisations should be excluded.

When used correctly, an NDA is a useful tool to protect confidential business information and prevent it being taken and used by a competitor. If you have any questions about an NDA your employer has given you or you would like to find out more about your rights after signing an NDA, you can contact Howard or our Employment team on 023 8071 7717 or email employment@warnergoodman.co.uk.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.