Confidentiality clauses (also known as non-disclosure agreements, or ‘gagging’ clauses) are often found in employment contracts for senior executives, or in other commercial contracts.

They are also common in settlement agreements that bring employment to an end if there has been a dispute between you and your employer. They are usually in place to protect legitimate business interests.

You might have heard concerns in the news that confidentiality clauses are being misused to cover up potential crimes such as harassment.

How would you feel about signing a confidentiality clause? What if you had been harassed at work and your employer offered you a settlement on the condition you signed one?

It’s good to know you have got rights in these situations…and also that any lawyers involved have got responsibilities.

Here are our top 4 things to know before you sign a confidentiality clause:

  • they can’t be used to try and cover up potential crimes or to stop you or someone else reporting them to the police
  • they can’t be used to stop you ‘whistleblowing’ and giving information to public authorities or certain regulators
  • 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 – for example ACAS can help you negotiate these settlements
  • you have the right to be given a copy of the agreement in writing

So – make sure you get advice about what you’re signing first, always ask for a copy, and remember that it can’t stop you speaking up about a criminal act or whistleblowing.

Triangle pattern

Your Comments

Lindsay says:

Wed, 03/06/2019 - 14:08
I signed one of these years ago as part of an agreement to leave my job and not take my employer to court for mismanagement.
I was given funds to get impartial legal advice, and a financial settlement. Of course it contained a gagging clause.
This organisation (quango) ceased to exist over five years ago. Does the clause last in perpetuity, or am I free to discuss the matter if I wish? Thank you.

Legal Choices says:

Wed, 03/06/2019 - 15:52

In reply to by Lindsay

Hi Lindsay

If there is no 'end date' set down in the agreement there may have been a presumption the confidentiality clause exists indefinitely.

However as the organisation that you have the agreement with no longer exists you may find that as a contract it could be reviewed by a court.

You might be able to get some advice about your next steps from ACAS through their employee helpline - all the details are here

Hope that helps.
Legal Choices

Peter Jones says:

Wed, 03/06/2019 - 16:37

In reply to by Lindsay

Lindsay, I am not any kind of legal professional, but consider it like this:
The quango no longer exists, so therefore there is no one or thing to stop you, or enaction any legal actions against you.
If you want to speak out against this quango, go for it! My advice would be to write your story, then find a sympathetic journalist, by which I mean from their 'specialist subject' eg George Monbiot from The Guardian for environmental issues for example. Firstly call them, and see if they're interested, if they are, email your story to them. Try to write it like a newspaper article, eg what, where, when, who and why (analyse a newstory with the 5 W's and you'll see), the reason being journalists are busy people, if you give them something almost printable they can cut 'n' shut it quickly. Also, the newspaper has a legal dept, so they can decide if there are any legal ramifications..
Failing that, there's always social media and bloggers.
There are many injustices in this cruel world, only by airing them will they be exposed and, hopefully ended. As it's been sometime since your troubles and you're obviously not a happy bunny about it I'd guess you want 'payback', you only get that if you fight and bite!
I wish you good luck, and say go for it!

Jim Owen says:

Wed, 03/06/2019 - 20:07

In reply to by Lindsay

As one party to any agreement has ceased to exist the agreement has ended. Note, if the agreement names a person at said company, this may lead the agreement on in perpetuity until death of one party.

Marc Horn says:

Sat, 03/09/2019 - 05:02

In reply to by Lindsay

Look at the parties who the agreement is between. Obviously you and ?quango? which presumably is a company... If they no longer exist then they are legally dead and hence they cannot do anything about it!!! Simple as that - a company is a separate legal entity and so you have no risk of who ever made you sign it coming after you (at a guess they still around)

R Thorne says:

Fri, 11/15/2019 - 13:50
My daughter is being told unless she signs a settlement agreement which, in effect, contains a gagging order they will withhold settlement pay and her reference. Can they do that?

Pavitri.Tailor… says:

Mon, 02/03/2020 - 14:43

In reply to by R Thorne

Hello there

Have you has a chance to look at the ACAS website?

There is some valuable information on the site about employment contracts. It might also be worth giving them a call here:

Legal Choices Team

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