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With all the recent press interest in NDA’s, we have received a significant number of enquiries from employers asking where they stand.  Below we set out 10 Q&A’s to explain what you need to know about NDA’s following ABC & Others v Telegraph Group

1. What is a Non-disclosure Agreement? A contract clause preventing the parties from disclosing the terms of agreement and the events leading up to it, which for employers and employees is normally in a Settlement Agreement.

2. Why are they in the news? The Telegraph obtained (probably illegally the Court of Appeal say) details of private Settlement Agreements Sir Philip Green’s companies had signed with ex employees and wanted to publish them.

3. What’s the big issue? The conflict between Article 10 of the European Convention on Human Rights which guarantees free speech and a free press, and Article 8 which protects the right to privacy.

4. What does UK law say? The Courts will generally enforce a duty of confidentiality, especially if expressed in a contract in writing, unless it can be shown that it would be in the public interest to allow publication.

5. Why prevent publication? If employers cannot enforce confidentiality or settlement agreements, then they will have to restrict employee access to information and many more claims will be litigated at substantial public expense.

6. Why allow publication? Arguably public interest is best served post-Weinstein by informed debate on the use of NDA’s by unscrupulous businesses and businessmen attempting to conceal discrimination and harassment.

7. Is this actually happening? Possibly, but the law clearly entitles an employee to agree a financial settlement of their civil harassment and discrimination claims provided they are not acting under duress and are legally advised.

8. What about serious abuses? Even after signature a NDA cannot override the statutory right to report serious wrongdoing under the Public Interest Disclosure Act to the relevant authorities, eg the Police or a regulatory watchdog.

9. What was decided? A temporary injunction restraining publication pending trial was granted. The information was likely obtained in breach of confidence, at least two employees objected to publication anyway and Sir Philip Green’s companies (still bound to observe their side of the NDA’s) would not have a fair chance to defend him from trial by media against allegations he strongly denied.

10. So do NDA’s still work? Almost certainly yes, provided they are correctly drafted.  This is a special set of circumstances and is more concerned about the right of the press to report information obtained illegally if it is arguably in the public interest.

This is provided by way of general information only and you should take specific advice if you intend to rely on it. All reasonable efforts are made to ensure this information is correct and up to date, but no responsibility for its accuracy or the consequences of relying on it are accepted and it does not represent legal advice. 

If you would like further information on these or any other issues or to seek advice, then please contact Simon Coatesor Amanda Coates. 

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