What is a confidentiality clause or agreement?

Confidentiality in employment situations

Confidentiality clauses (also known as ‘gagging’ clauses) are often found in employment contracts for employees who have access to important business information. They might also be in other commercial contracts that give a party access to important information that the other party wants to keep secret. They are usually in place to protect genuine business interests.

They are also common in settlement agreements that bring employment to an end if there has been a dispute between you and your employer. When this happens, it usually means that the employee leaving the business is not allowed to tell anyone about the details of the settlement agreement. They can also be prevented from telling anyone that an agreement has been made.

Other confidentiality agreements

There are also agreements that are just about confidentiality. These are often called ‘confidentiality agreements’ or ‘non-disclosure agreements’. They can be used when two parties wish to work together, but one party wants to share information that it wants to keep confidential for legitimate business reasons. 

Confidentiality clauses and agreements should use clear terms. Both parties should understand the terms. The clause should be relevant to the issues or claims likely to arise. You should be given enough time to read and understand any clause or agreement given to you. You should have the chance to obtain advice.

What can a confidentiality clause or agreement be used for?

Confidentiality clauses or agreements can be used to:

  • protect the confidential information of a business 
  • protect intellectual property
  • prevent you from disclosing details of a settlement 
  • prevent you from disclosing that a settlement has taken place 

What can a confidentiality clause or agreement not be used for?

Confidentiality clauses or agreements can’t be used to:

  • try and cover up potential crimes or to stop you or someone else reporting them to the police 
  • stop you ‘whistleblowing’ and giving information to public authorities or certain regulators
  • keep something confidential that is not legally allowed to be kept confidential
  • prevent you from disclosing something you are legally required to disclose 
  • cover up or deter you from reporting inappropriate behaviour 

You should never be put under pressure to sign a confidentiality clause or agreement. You shouldn’t be made to feel like you have to sign it. You should always be given a written copy of the agreement. 

Where can I get advice if I am asked to sign a confidentiality clause or agreement?

If you have been asked to sign a confidentiality agreement or clause, you may want to contact a legal adviser. They can review it for you and give you advice about whether or not you should sign it. They will also be able to let you know if the clause or agreement is trying to be used for something it shouldn’t be used for.

If you are asked to sign a settlement agreement at work, your employer should make sure you have access to independent advice from someone like a lawyer or a trade union representative. ACAS can also help you negotiate these settlements.

So – if you are unsure, make sure you get advice about what you’re signing first. Always ask for a copy, and remember that the clause or agreement can’t stop you speaking up about a criminal act or whistleblowing.