The use of non-disclosure agreements (NDAs) to keep confidential matters secret is once again in the public eye.
This time, the Labour Party’s use of NDAs is at the centre of media scrutiny. Former staffers are alleged to have leaked documents to the BBC’s Panorama, which aired an investigation into claims of anti-Semitism in the Labour Party on Wednesday (10 July). Some who spoke to the BBC have received letters threatening legal action for breaching NDA obligations.
NDAs also caught media attention with the rise of the #MeToo movement – which raised concerns about how confidentiality agreements and out-of-court payouts have reportedly been used by wealthy, powerful men to hush-up victims of sexual harassment.
The Equality and Human Rights Commission (EHRC) has highlighted how NDAs and confidentiality clauses in employment contracts can deter employees from reporting workplace harassment for fears they could be sued.
So, what are your rights in relation to NDAs? RightsInfo spoke to barrister Matthew Jackson, who specialises in employment law. Here’s what he said.
What Is An NDA?
NDAs are legal contracts between two parties which aim to prevent them (or one of them) from sharing information with others.
Non-disclosure agreements or clauses may be used at the start of an employment relationship to keep business information confidential. Sometimes, confidentiality clauses are included in settlement agreements in exchange for money, designed to prevent a person from speaking out about a particular issue.
What Should You Do If Presented With An NDA?
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If you’re presented with an NDA and aren’t sure what to do, Mr Jackson said: “You should get independent legal advice and ask that your employer pays for it. That is standard practice.”
He also suggested that anyone confronted with an NDA should look out for restrictions it places on who they can share information with. While NDAs typically allow signatories to share information privately with a spouse, doctor or family member Mr Jackson said: “With Harvey Weinstein, it was reported that there were restrictions on sharing information with medical professionals.”
He added: “It was also reported that people were not allowed to keep a copy of the [NDA].
“There is no law to say that you cannot have a copy unless the agreement you sign says so. There is however no good reason why you should agree to this.”
It’s important to ensure you get a copy of the document to be able to look back at what it says.
You cannot be forced to sign an NDA if you do not want to accept the terms.
Are NDAs Legally Binding? What Happens If I Breach It?
“Yes, they are binding,” Mr Jackson told RightsInfo. “If the agreement containing the NDA takes away employment rights, like unfair dismissal, or discrimination, it might not be binding unless the person [signing it] has received independent legal advice beforehand.
“It is dangerous to break it without seeking advice first though.“
He said that breaching an NDA could result in being sued for damages (i.e. compensation) and/or being made subject to an injunction – a court order which would prevent you being able to disclose the information in question.
Are There Any Exceptions?
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NDAs cannot prevent a person from sharing information which is classed as a “protected disclosure” under the Public Interest Disclosure Act 1998, Mr Jackson confirmed.
This Act of Parliament covers most workers in the public, private and voluntary sectors and was introduced to protect whistleblowers.
The Act protects disclosures concerning, for example, evidence of health and safety being put at risk; miscarriages of justice; criminal offences and damage to the environment, among other types of information.
In order to qualify as a protected disclosure, a disclosure must be made in good faith and it must be reasonably believed that the information disclosed is “substantially true”.
If workers do not go to their employer first to make a disclosure, they should contact an authority known as a ‘prescribed person’ – there are around 50 such bodies, including the Charity Commission, the Financial Conduct Authority and their employer, among others.
Disclosures can also be made to the press if a tribunal finds that the information indicates an exceptionally serious failing that the person making the disclosure reasonably believes to be sufficiently in the public interest, Mr Jackson added.
“In these circumstances, the person making a disclosure must reasonably believe that the information is ‘substantially true’ and not make the disclosure for personal gain,” he said. “There is another hurdle that it must be reasonable to make the disclosure to the press rather than anyone else.”
Matthew Jackson is a barrister at 10KBW. Please note that this article does not provide legal advice but is for information purposes only. For legal advice, contact a lawyer.
If you’d like to know more:
- Take a look at our explainer on #MeToo injunctions and NDAs.
- View a news piece on silencing sexual harassment in the workplace.
- Learn more about your rights at work.
Additional reporting by Natasha Holcroft-Emmess.
