Understanding NDAs: Essential Guidance for Your Business
As UK laws continue to transform it’s crucial for businesses to stay informed, particularly regarding non-disclosure agreements NDAs. These agreements include guidelines on drafting, usage, misuse, and the limitations of NDAs and confidentiality clauses. The latest guidance draws from current legislation to offer practical strategies for preventing the misuse of NDAs within the workplace.
Protecting business interests legally – Understanding the proper use and limitations of non-disclosure agreements in today’s workplace
What Are NDAs?
NDAs are legal contracts that impose confidentiality obligations on certain shared information or ideas between parties, typically in exchange for something of value, like payment. They may be standalone contracts at the beginning of employment or part of a settlement agreement following a dispute. NDAs are crafted to maintain confidentiality between employer and employee.
Despite their utility, NDAs often face scrutiny, and recent legislative developments may impact your business strategy. Below, we outline new guidance that serves as a valuable reference for organisations.
The Victims and Prisoners Act 2024
Beginning in October 2025, new legislation will take effect, as announced by gov.com. This legislation is relevant to businesses in England and Wales using NDAs, as well as individuals utilising them.
Under Section 17 of this legislation, NDAs signed on or after 1st October 2025 will not be enforceable against crime victims regarding the disclosure of relevant conduct information. For instance, a workplace sexual harassment victim would be exempt from their NDA concerning relevant information. For a comprehensive overview, explore the new Victims and Prisoners Act 2024
Key Takeaways from the New Guidance
The guidance reinforces that NDAs and confidentiality clauses must not be used to conceal inappropriate behaviour, such as harassment, nor should they impede whistleblowing or discrimination claims. Organisations should already have clear policies for addressing these issues and should avoid uniform agreements for all staff, regardless of role.
Before introducing an NDA or confidentiality clause, assess its necessity and avoid using them as a default measure. If necessary, follow these steps:
- Clearly explain the clause’s purpose and intended outcomes.
- Write the clause in straightforward, unambiguous English.
- State that the clause does not remove the right to file a claim with the employment tribunal, except in lawful settlement agreements.
- Clarify that these clauses do not prevent workers from seeking medical or professional advice.
When contemplating a confidentiality clause, negotiate terms with employees, considering the confidentiality’s nature and extent and its impact on staff.
While not legally required, allow affected employees to be accompanied during negotiations by a colleague or trade union representative. Provide at least 10 days for consideration before signing. The guidance also highlights NDA and confidentiality clause limitations.
NDA Limitations
The guidance outlines NDA and confidentiality clause limitations, recognising that workers may need to share agreement details with specific parties, such as:
- Supervisor, manager, or relevant colleague
- Immediate family
- Trade union representatives
- Legal representatives
- Medical and healthcare professionals
- Prescribed bodies or individuals under whistleblowing legislation
- Police or other law enforcement bodies
Advice on NDAs
While NDAs can be legitimately used in certain situations, they should not prevent reporting issues like harassment. Given their complexity, seeking reassurance is advisable if uncertain. For expert guidance on NDAs and confidentiality clauses, contact Tick HR Solutions.
Our experienced team is ready to provide tailored advice and support to ensure your business remains compliant and your workplace remains respectful and fair.