Non-Disclosure Agreement Guidance

Changes to legislation are happening often in the United Kingdom, so it’s good to get up to date about them. Non-disclosure agreements, or NDAs, include guidance on everything including drafting, use, misuse and limitations of NDAs and confidentiality clauses.

The guidance calls upon current legislation to provide practical ways to avoid the misuse of NDAs in the workplace.

What are NDAs?

NDAs are legal contracts which place confidentiality requirements on certain information or ideas shared between the parties, in exchange for something of value, such as payment. They can be stand-alone contracts that begin at the start of an employee’s employment, or form part of a settlement agreement after a dispute which resulted in your employee leaving. They are designed to keep everything between employee and employer confidential.

NDAs are often under scrutiny, and there have been some recent developments and new legislation that could affect your business plan. The new guidance below provides a helpful reference point for organisations to follow.

The Victims and Prisoners Act 2024

From October 2025, new legislation will come into effect, according to gov.com. The legislation will apply to you if you are a business within England and Wales that uses non-disclosure agreements or are an individual that also uses them.  

Under Section 17 of this new legislation, NDAs signed on or after 1^st October 2025 will not be enforceable against victims of crime in relation to the disclosure of information about relevant conduct. For example, a victim of sexual harassment in the workplace would be exempt from their NDA when it relates to relevant information. Read more about the new Victims and Prisoners Act 2024 to get a comprehensive overview of the legislation. Or you can contact one of our HR consultants on 0808 501 6651 for FREE legal advice.

What does the new guidance tell us?

It reaffirms that NDAs and confidentiality clauses should never be used to cover up inappropriate behaviour and wrongdoing. This includes harassment. They should also not be seen to stop claims of whistleblowing, or discrimination. The guidance outlines that organisations should already have clear policies in place for responding to these situations. You should avoid implementing identical agreements for all staff regardless of their role.

If you want to introduce an NDA or confidentiality clause, consider if such a clause is necessary and don’t fall into the habit of using them as a ‘standard’ approach. If it is necessary, you should take the following steps:

1. Provide a clear explanation of why this clause is being proposed and what it intends to achieve.
2. Ensure that the clause is written in clear, plain English that leaves no room for ambiguity.
3. Make it clear that the clause does not take away rights to make a claim to the employment tribunal (ET). The exception to this is a situation where a lawful settlement agreement is being signed.
4. Make it clear that these clauses do not stop workers from seeking medical or professional advice.

When considering the use of a confidentiality clause, you may negotiate terms with your employees. Make sure to consider the nature and extent of the confidentiality and how it will impact your staff.

There’s no legal requirement, but you should allow the employees affected to be accompanied during negotiations. This could be a work colleague or a trade union representative. You should also provide them with a minimum of 10 days to consider the clause before signing. The guidance allows outlines limitations to the use of NDAs and confidentiality clauses.

NDA limitations

The guidance also outlines limitations to the use of NDAs and confidentiality clauses. Specifically, it should be considered that workers may want or need to share details of the agreement with certain bodies, such as their:

• Supervisor, manager or relevant colleague
• Immediate family
• Trade union representatives
• Legal representatives
• Medical and healthcare professionals
• Prescribed bodies or persons under whistleblowing legislation
• Police or other law enforcement bodies

Advice on NDAs

NDAs can be used legitimately in some situations, but they shouldn’t be used to prevent someone reporting on issues such as harassment. NDAs can be complex, and it’s worth getting reassurance if you’re not sure. Call Croner on 0808 501 6651 for support and our experts can give you information and advice one everything to do with NDAs.