What’s the difference between a non-disclosure agreement, a confidentiality agreement and a gagging agreement?
Nothing – they are all names for the same thing. They can be found as a clause or number of clauses within a wider agreement – normally called a settlement agreement. They can also be a standalone agreement – signed before commencement of employment or before parties begin discussions.
What’s the difference between a settlement agreement and a non-disclosure agreement?
A settlement agreement is a legally binding contract to settle a claim or dispute one party may have against another. A non-disclosure agreement, in this scenario, is a clause within the settlement agreement that makes various aspects confidential – usually the circumstances to be settled and any compensation paid.
Are settlement agreements ok?
Settlement agreements can be a faster, more confidential and less traumatic way to address a dispute than going through an employment tribunal process. They are a key part of most legal systems. As long as they do not contain confidentiality clauses, they can be an appropriate way to handle a dispute.
Do NDAs have a legitimate purpose?
Yes. Their original purpose was the protection of intellectual property and we believe this is the proper use for NDAs. Another legitimate purpose is the protection of personal data in scenarios not covered by data protection regulation. For example, a confidentiality agreement may be appropriate when hiring an external contractor such as an independent bookkeeper or IT support who might have access to confidential data.
Can you legally break an NDA?
It depends on the jurisdiction. In some countries you can disclose information in line with whistleblower protection law. It may also be possible to legally break an NDA if the NDA was obtained because of duress (though only in exceptional circumstances) or through fraud. You should obtain legal advice before you do so. You may be able to get free advice from whistleblower support organisations. Check out the Whistleblowing International Network for national organisations offering support.
Should an NDA be used if a survivor of abuse requests one?
This situation requires some deep reflection on why a survivor feels they would benefit from an NDA. It is highly unusual for somebody to request to bind themselves to silence unless it is seen as a condition to obtain something else – e.g. the silence of other parties to protect dignity or settlement benefits (including employment references and/or enhanced settlement payment), etc.
Should an NDA be used where an employee requests one – perhaps because of a situation which is in the best interests of both parties to keep confidential?
No – this should raise alarm bells since it may lead to the churches/organization circumventing established policies (e.g. grievance, disciplinary, whistleblowing) and colluding in concealment of wrongdoing.
Should an NDA be used to prevent an employee/ex-employee from disclosing confidential information obtained because of their job?
Certain professional staff are bound by principles of confidentiality (lawyers, doctors, ordained people, counsellors), for which they can be subject to formal complaints if they break confidentiality. NDAs should not be required in these cases. Whilst NDAs may offer a tempting solution to bind employees/ex-employees, the church/organization should ask themselves what is the role of values, trust and relationships and how are these impacted by relying on legal instruments (which in practice may not be enforceable).
Is there an alternative to an NDA for ensuring confidential information about vulnerable people is not disclosed?
Relying on an NDA to protect confidential information about vulnerable people is an admission of failure in earlier processes such as recruitment, supervision, protection of confidential information, ongoing professional training and adherence to policies and procedures. Within your church/organization, there is a responsibility to ensure that only appropriately trained and trustworthy staff have access to confidential information about vulnerable people. In relevant jurisdictions, this will include adherence to General Data Protection Regulation (GDPR) which makes provision for the protection of stored data.
In some countries (e.g. the UK) it is a requirement that the employer pays for independent legal advice for the employee before signing a settlement agreement. Where this happens, is it not the case that the employee enters into the agreement (often with an NDA) informed and consensually?
Despite this welcome provision, it does not negate the serious imbalance of power at play between an employer and their employee. In countries where taking a case to an employment tribunal is expensive, slow and uncertain, the incentive for the employee to settle, even with the inclusion of unwelcome confidentiality clauses, can be extremely high.
Certain processes such as investigations, reviews or mediation may require participants to sign confidentiality agreements, with the purpose of creating an environment where people feel safe enough to provide input and evidence. Is this a suitable use of NDAs?
It is almost certainly the case that the confidentiality agreement will benefit one party more than the other – often the party with more power and/or things to hide. However, in this situation, an NDA may be a ‘necessary evil’ to provide a safe enough space for dialogue – although they may also create as many new dilemmas as they attempt to resolve.
As a survivor of abuse, should I not have the right to the confidentiality provided for through an NDA?
As a survivor of abuse, your right to confidentiality should not be dependent on whether you sign a confidentiality agreement or not – #NDAfree believes it should be automatically given. That said, there are situations where having a written agreement regarding confidentiality may provide much needed reassurance. A key issue for consideration is whether any confidentiality agreement would put other people at risk by inadvertently protecting the perpetrator and/or the culture which allows abuse to go unaddressed.
Does the size of a settlement payment indicate ‘guilt’ or liability?
Not necessarily. The settlement payment is determined by the reputational risk of the allegations should they become public (whether verified or not), the likelihood of a successful claim at an employment tribunal and the ability of the complainant to pursue their claims. This may mean that vulnerable people who have been victims of serious abuse may in fact be offered very small settlement amounts.
What’s a non-disparagement clause?
A non-disparagement clause is a legally binding contract that forbids a party (e.g. an employee) from saying anything negative about the party (e.g. a company, its clients, customers, and the experience of working there). Disparagement is different from defamation. Disparagement includes truthful statements about the company, while defamation only covers false statements.
What’s wrong with a non-disparagement clause – we shouldn’t speak negatively about each other anyway?
Whilst we shouldn’t ‘bad-mouth’ people, however truthful those comments may be, a non-disparagement clause goes far beyond a legal restriction on gossip. It prevents you saying anything negative at all. So if you talk about a harmful company product or an abusive Executive with the aim of protecting other people, you can still be accused of disparagement.
What’s a release agreement?
A Release Agreement (Waiver) is an enforceable promise not to proceed with a legal claim in exchange for money or other compensation.
Is #NDAfree linked to a particular denomination?