Q What is a ‘non-disclosure agreement’ or ‘confidentiality agreement’ in the context of employment?
A Any agreement, or a clause in an agreement, which requires an employee to keep quiet about certain things. Usually it is signed when the employee’s employment ends and it is signed in exchange for a payment by the employer.
We are discussing NDAs here primarily in the context of employment relationships but I can advise on NDAs in other contexts as well, e.g. general business or even personal relationships.
Breach of an NDA can mean civil proceedings can be taken by the employer, including return of the sum paid to the employee, and further losses as well.
Q Are such agreements lawful and valid?
A Not always. They may not always be binding for all purposes. It depends on the circumstances. For instance, such an agreement cannot restrict an employee from reporting criminal acts which have been committed by the employer to the police.
It is precisely for that reason that such NDAs have been in the news very recently; employees may be intimidated into doing something or not doing something that they would have done otherwise, even if the NDA restriction in actually extremely unfair and perhaps unlawful. There has been concern expressed that vulnerable people have been ‘gagged’ from telling their stories, about being seriously bullied or assaulted, for instance.
Q What should I do if I need advice on an NDA?
A If you are an employer, I can advise on the best possible lawful and ethical way to protect your position if you are faced with a difficult employee who is seeking to make a claim against you.
If you are an employee, I can advise on whether you should enter into an NDA, and assist in negotiating the terms to your best advantage. Without legal advice, you will not know what your rights are, or what possible claims you might or might not have.
What is our fee for dealing with an NDA?
If you are an employee and have been offered an agreement by your employer, the employer will normally pay the full cost of us certifying the agreement. We can discuss this further in detail.
There may be further costs if there are extensive negotiations involved. The employer will not normally pay for that. However, if we achieve a result which is worthwhile, that may be ultimately very financially positive for you.
If you would like advice on any aspect of employment / business law, please contact me directly.
Kuldeep S. Clair,
Sterling Lawyers Ltd
+ 44 7484 614090