CHECK YOUR NDA

This online tool will take you through questions intended to help you check the various elements of your non-disclosure agreement (NDA).

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What is an NDA?

A non-disclosure agreement ( NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ) usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential (that is to say not discussed with others or passed on to others who are not party to the agreement). It may sometimes be referred to as a confidentially agreement or colloquially as a ‘gagging clause’. In employment matters they are typically used to protect intellectual property, trade secrets and confidential information or in the context of settling actual or potential employment disputes, particularly those involving harassment or discrimination matters. However, they may also be contained in commercial contracts (related to for example procurement, prospective mergers and acquisitions or a start-up venture proposal) and negligence settlements.

This tool focuses on NDAs in a workplace exit context, where one of the parties to the NDA is an individual, including but not limited to employees, workers, apprentices, partners, limited liability partnership members and job applicants ( Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. ) and another party is an employing organisation, including but not limited to a company, partnership or limited liability partnership ( Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. ).

How to use this tool to check your NDA

Taking into account the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , the SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms ( SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. ), the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 and the ACAS Settlement Agreement Code of Practice dated 29 July 2013 ( ACAS Code of Practice ACAS Code of Practice The ACAS Settlement Agreement Code of Practice dated 29 July 2013. ), this online tool seeks to highlight potential areas of consideration for solicitors as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs ( Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ) when proposing, negotiating, drafting and advising on NDAs in England and Wales in a workplace exit context.

You will be provided with a traffic light risk report once you have completed the questions, containing explanatory commentary about any potential risk, considerations and next steps where relevant.

The traffic light system is categorised as follows:

Red – high risk, extreme caution advised. You should re-consider your position.

Yellow – medium risk, careful consideration recommended.

Green – low risk, appropriate in most circumstances, subject to identified caveats and general conduct obligations.

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DISCLAIMER
Please note that NDAs may be used in a variety of circumstances and determining whether and how to use them may involve a nuanced balance of judgement. Accordingly, please be aware that the low, medium or high risk outcome indicators and commentary provided by this tool are necessarily limited, intended as guidance only, do not constitute legal advice and the final report produced will not constitute legally privileged advice. Further advice or investigation beyond this tool may therefore be required to determine the appropriate approach in the particular circumstances of your case.

This tool should not be used as a substitute for ensuring familiarity with your legal, professional, regulatory and ethical obligations in the particular circumstances. Further, whilst every care has been taken to ensure the accuracy of the information contained in this tool, we cannot guarantee that the relevant law and guidance has not changed since the time of publication and the user is cautioned accordingly. If you would like to discuss the particular circumstances of your NDA issue, or any other questions arising from this tool we would be happy to help. Please contact one of our experts so that confidential legal advice tailored to your specific circumstances can be provided.

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Check Your NDA

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1. Does the NDA seek to protect any of the following?
- Trade secrets or confidential information
- Some other legitimate interest
Does the NDA seek to protect any of the following?
Considerations when using an NDA to protect trade secrets and confidential information

If you are seeking to protect trade secrets or confidential information by means of an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , it will be important to consider the issues set out below.

What trade secrets or confidential information is being protected? What trade secrets or confidential information is being protected? You should be able to articulate what trade secrets or confidential information you are seeking to protect and what disclosures you are seeking to prevent, this may for example include client or customer contacts, sensitive business plans and pricing information, or trade secrets and intellectual property. Ideally a definition of what the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. considers amounts to a trade secret or confidential information should be included.
Whether an NDA is necessary, desirable and proportionate? Whether an NDA is necessary, desirable and proportionate? Not all agreements will necessitate an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and it is important that they are not used routinely where they are not required. You should therefore consider whether there is a clear reason and benefit of including an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to protect confidential information, balanced against whether it is necessary, the impact on the worker and organisational culture, as well as the benefits of not using it.

For example, where the information relates to a misconduct complaint is it more beneficial to the Organisation to allow a departing worker to be free to speak about the way the Organisation addressed a complaint which could demonstrate a transparent culture and good systems, practices and procedures? Or would using an NDA have a detrimental impact on staff and future complainants, should they feel prior complainants were ‘gagged’ or the matter was ‘swept under the carpet’ and shrouded in secrecy? Additionally, if staff feel unable to speak up, could this make it difficult for the Organisation to identify patterns of behaviour that need to be addressed? These issues should be balanced against any confidentiality considerations in respect of the Individual, the accused person and others involved, including any complainant’s wishes and whether the relevant allegations have been upheld or in rare instances found to be falsely made such that the Organisation wishes to protect the reputation of the falsely accused person.
Are there alternative proportionate means of protection? Are there alternative proportionate means of protection? Consider whether the trade secrets or confidential information may be protected in another way without an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. (for example, strengthening physical and electronic security systems, changing passwords when someone leaves or limiting disclosure of the confidential information to certain people) or whether they are already protected by existing contractual obligations or other means? If so, an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. may not be necessary.

For example, most employment contracts will contain confidentiality provisions relating to company trade secrets and confidential information which usually continue to apply post-termination (and the common law protects genuine trade secrets during and after employment even without an express provision). This may therefore suffice to protect the Organisation's Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. confidential information if there are no other confidentiality concerns about the particular circumstances of the termination or settlement terms.
Can the NDA be restricted to a limited category of information? Can the NDA be restricted to a limited category of information? Alternatively consider whether the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. can be tailored to the circumstances to specifically cover only the information that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. may be concerned about. For example, how much compensation an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. was paid to settle an actual or potential claim, which does not prevent them discussing the substance of any underlying complaint.

What trade secrets or confidential information is being protected?

You should be able to articulate what trade secrets or confidential information you are seeking to protect and what disclosures you are seeking to prevent, this may for example include client or customer contacts, sensitive business plans and pricing information, or trade secrets and intellectual property. Ideally a definition of what the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. considers amounts to a trade secret or confidential information should be included.

Whether an NDA is necessary, desirable and proportionate?

Not all agreements will necessitate an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and it is important that they are not used routinely where they are not required. You should therefore consider whether there is a clear reason and benefit of including an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to protect confidential information, balanced against whether it is necessary, the impact on the worker and organisational culture, as well as the benefits of not using it.

For example, where the information relates to a misconduct complaint is it more beneficial to the Organisation to allow a departing worker to be free to speak about the way the Organisation addressed a complaint which could demonstrate a transparent culture and good systems, practices and procedures? Or would using an NDA have a detrimental impact on staff and future complainants, should they feel prior complainants were ‘gagged’ or the matter was ‘swept under the carpet’ and shrouded in secrecy? Additionally, if staff feel unable to speak up, could this make it difficult for the Organisation to identify patterns of behaviour that need to be addressed? These issues should be balanced against any confidentiality considerations in respect of the Individual, the accused person and others involved, including any complainant’s wishes and whether the relevant allegations have been upheld or in rare instances found to be falsely made such that the Organisation wishes to protect the reputation of the falsely accused person.

Are there alternative proportionate means of protection?

Consider whether the trade secrets or confidential information may be protected in another way without an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. (for example, strengthening physical and electronic security systems, changing passwords when someone leaves or limiting disclosure of the confidential information to certain people) or whether they are already protected by existing contractual obligations or other means? If so, an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. may not be necessary.

For example, most employment contracts will contain confidentiality provisions relating to company trade secrets and confidential information which usually continue to apply post-termination (and the common law protects genuine trade secrets during and after employment even without an express provision). This may therefore suffice to protect the Organisation's Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. confidential information if there are no other confidentiality concerns about the particular circumstances of the termination or settlement terms.

Can the NDA be restricted to a limited category of information?

Alternatively consider whether the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. can be tailored to the circumstances to specifically cover only the information that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. may be concerned about. For example, how much compensation an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. was paid to settle an actual or potential claim, which does not prevent them discussing the substance of any underlying complaint.
If you are seeking to protect a legitimate interest by means of an NDA, it will be important to consider the issues set out below.

What legitimate interest is being protected?

You should be able to articulate what legitimate interest you are seeking to protect and what disclosures you are seeking to prevent and whether it is appropriate to do so. Consider whether that legitimate interest can be protected in another way without an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or whether it is already protected? If so, an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. may not be necessary.

Whether an NDA is necessary, desirable, and proportionate? Whether an NDA is necessary, desirable and proportionate? Not all agreements will necessitate an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and it is important that they are not used routinely where they are not required. You should therefore consider whether there is a clear reason and benefit of including an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to protect confidential information, balanced against whether it is necessary, the impact on the worker and organisational culture, as well as the benefits of not using it.

For example, where the information relates to a misconduct complaint is it more beneficial to the Organisation to allow a departing worker to be free to speak about the way the Organisation addressed a complaint which could demonstrate a transparent culture and good systems, practices and procedures? Or would using an NDA have a detrimental impact on staff and future complainants, should they feel prior complainants were ‘gagged’ or the matter was ‘swept under the carpet’ and shrouded in secrecy? Additionally, if staff feel unable to speak up, could this make it difficult for the Organisation to identify patterns of behaviour that need to be addressed? These issues should be balanced against any confidentiality considerations in respect of the Individual, the accused person and others involved, including any complainant’s wishes and whether the relevant allegations have been upheld or in rare instances found to be falsely made such that the Organisation wishes to protect the reputation of the falsely accused person.
Can the NDA be restricted to a limited category of information? Can the NDA be restricted to a limited category of information? Alternatively consider whether the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. can be tailored to the circumstances to specifically cover only the information that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. may be concerned about. For example, how much compensation an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. was paid to settle an actual or potential claim, which does not prevent them discussing the substance of any underlying complaint.

Whether an NDA is necessary, desirable and proportionate?

Not all agreements will necessitate an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and it is important that they are not used routinely where they are not required. You should therefore consider whether there is a clear reason and benefit of including an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to protect confidential information, balanced against whether it is necessary, the impact on the worker and organisational culture, as well as the benefits of not using it.

For example, where the information relates to a misconduct complaint is it more beneficial to the Organisation to allow a departing worker to be free to speak about the way the Organisation addressed a complaint which could demonstrate a transparent culture and good systems, practices and procedures? Or would using an NDA have a detrimental impact on staff and future complainants, should they feel prior complainants were ‘gagged’ or the matter was ‘swept under the carpet’ and shrouded in secrecy? Additionally, if staff feel unable to speak up, could this make it difficult for the Organisation to identify patterns of behaviour that need to be addressed? These issues should be balanced against any confidentiality considerations in respect of the Individual, the accused person and others involved, including any complainant’s wishes and whether the relevant allegations have been upheld or in rare instances found to be falsely made such that the Organisation wishes to protect the reputation of the falsely accused person.

Can the NDA be restricted to a limited category of information?

Alternatively consider whether the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. can be tailored to the circumstances to specifically cover only the information that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. may be concerned about. For example, how much compensation an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. was paid to settle an actual or potential claim, which does not prevent them discussing the substance of any underlying complaint.
2. Is the Individual subject to the NDA legally represented?
- Yes
- No
Is the Individual subject to the NDA legally represented?
Dealing with a represented Individual

Even where the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is represented by a lawyer, professional adviser, litigation friend, intermediary or other third party, it is advisable to still take due care in ensuring you deal with them fairly.
Further potential factors to consider: taking unfair advantage Further potential factors to consider: taking unfair advantage
Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements Further potential factors to consider: statutory settlement agreements
If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs Further potential factors to consider: drafting NDAs
Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: taking unfair advantage
Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs

Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Dealing with an unrepresented Individual

If the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not legally represented, there is likely to be an imbalance of bargaining power and particular care should be taken to ensure that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. signing the agreement understands its terms and that improper pressure is not put on them to enter into it.
Further potential factors to consider: taking unfair advantage Further potential factors to consider: taking unfair advantage
Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements Further potential factors to consider: statutory settlement agreements
If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs Further potential factors to consider: drafting NDAs
Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: taking unfair advantage

Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs

Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
3. Is the Individual vulnerable in any way e.g. does the Individual suffer from mental health issues?
- Yes
- No
Is the Individual vulnerable in any way e.g. does the Individual suffer from mental health issues?
Approach to vulnerable Individuals

If the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is vulnerable (by virtue of their health, age, lack of experience or other specific vulnerability feature) this could indicate an imbalance of power requiring careful handling or could make an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. unconscionable to use all together.
Consider whether any adjustments could be made for a vulnerable Individual Consider whether any adjustments could be made for a vulnerable Individual If on balance an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is nonetheless appropriate, you should consider that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. may have more difficulty understanding the terms and what is being requested of them and assess whether any adjustments should be made for the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. to assist them during the process. This could include for example, but is not limited to, giving them more time to consider its terms, advising to obtain and covering the costs of them obtaining legal advice, explaining the rationale behind the proposed terms orally.
Further potential factors to consider: taking unfair advantage Further potential factors to consider: taking unfair advantage
Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements Further potential factors to consider: statutory settlement agreements
If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs Further potential factors to consider: drafting NDAs
Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Consider whether any adjustments could be made for a vulnerable Individual

If on balance an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is nonetheless appropriate, you should consider that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. may have more difficulty understanding the terms and what is being requested of them and assess whether any adjustments should be made for the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. to assist them during the process. This could include for example, but is not limited to, giving them more time to consider its terms, advising to obtain and covering the costs of them obtaining legal advice, explaining the rationale behind the proposed terms orally.

Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs

Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Approach to vulnerable Individuals

Even where an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. entering into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is not vulnerable, it is nonetheless advisable to still take due care in ensuring you deal with them fairly.
Further potential factors to consider: taking unfair advantage Further potential factors to consider: taking unfair advantage
Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements Further potential factors to consider: statutory settlement agreements
If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs Further potential factors to consider: drafting NDAs
Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs

Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
4. How much time has the Individual been given to consider the terms of the NDA?
- Less than 10 days
- More than 10 days
How much time has the Individual been given to consider the terms of the NDA?
Individuals should be given at least 10 days to consider the terms of an NDA

You should reconsider your position and ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is provided with more than 10 days to consider the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .

Where the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement, normally, and unless there are exceptional circumstances, the ACAS Code of Practice ACAS Code of Practice The ACAS Settlement Agreement Code of Practice dated 29 July 2013. provides that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. should be given no less than 10 days to consider it, from the point at which the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is asked to take advice on the agreement. The Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. must not dictate from whom the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. takes independent advice.

Whilst 10 days is recommended by ACAS ACAS The Advisory, Conciliation and Arbitration Service , it may be appropriate to allow more than 10 days depending on the particular circumstances of the case.

Additionally, the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 makes it clear that Organisations Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. should not put Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. under pressure to sign an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . The Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. will need time to read and reflect on any NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and often to discuss it with a lawyer, trade union representative or other appropriate adviser if they are unsure as to its meaning or effect. Allowing the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. time to do this will also benefit the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. , as the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is more likely to be enforceable if the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. was fully aware before signing of its meaning and effect.
Further potential factors to consider: taking unfair advantage Further potential factors to consider: taking unfair advantage
Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements Further potential factors to consider: statutory settlement agreements
If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs Further potential factors to consider: drafting NDAs
Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs

Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Individuals should be given at least 10 days to consider the terms of an NDA

Where the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement, normally, and unless there are exceptional circumstances, the ACAS Code of Practice ACAS Code of Practice The ACAS Settlement Agreement Code of Practice dated 29 July 2013. provides that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. should be given no less than 10 days to consider it, from the point at which the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is asked to take advice on the agreement. The Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. must not dictate from whom the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. takes independent advice.

Whilst 10 days is recommended by ACAS ACAS The Advisory, Conciliation and Arbitration Service , it may be appropriate to allow more than 10 days depending on the particular circumstances of the case.

Additionally, the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 makes it clear that Organisations Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. should not put Individuals Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. under pressure to sign an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . The Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. will need time to read and reflect on any NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and often to discuss it with a lawyer, trade union representative or other appropriate adviser if they are unsure as to its meaning or effect. Allowing the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. time to do this will also benefit the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. , as the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is more likely to be enforceable if the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. was fully aware before signing of its meaning and effect.
Further potential factors to consider: taking unfair advantage Further potential factors to consider: taking unfair advantage
Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements Further potential factors to consider: statutory settlement agreements
If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs Further potential factors to consider: drafting NDAs
Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs

Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
5. Have you included an express carveout for whistleblowing under the Public Interest Disclosure Act 1998/s43B of the Employment Rights Act (ERA) 1996?
- Yes
- No
Have you included an express carveout for whistleblowing under the Public Interest Disclosure Act 1998/s43B of the Employment Rights Act (ERA) 1996?
Including a whistleblowing carve out

You should include a properly drafted, clear carve for making a protected disclosure under the Public Interest Disclosure Act 1998/s43B ERA ERA Employment Rights Act 1996 (whistleblowing) in standard plain English. This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any whistleblowing disclosure could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Additionally, in the context of a settlement agreement whilst it is possible to settle a whistleblowing claim which already exists as at the date of entering into the agreement, it is not possible to use an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to prevent a worker from making a protected disclosure in the future. Any clause in an agreement which purports to prevent such disclosures will be rendered void by section 43J ERA, and is likely to invite SRA SRA Solicitors Regulation Authority investigation.
Including a whistleblowing carve out

You should reconsider your position. The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes it clear that the SRA SRA Solicitors Regulation Authority would consider it improper if an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. was used to prevent or seek to impede or deter a person from making a protected disclosure under the Public Interest Disclosure Act 1998. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action from the SRA SRA Solicitors Regulation Authority .

The imperative of making prohibitions and exclusions clear in the NDA The imperative of making prohibitions and exclusions clear in the NDA The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.
Further potential factors to consider: including a whistleblowing carve out Further potential factors to consider: including a whistleblowing carve out You should include a properly drafted, clear carve for making a protected disclosure under the Public Interest Disclosure Act 1998/s43B ERA ERA Employment Rights Act 1996 (whistleblowing) in standard plain English. This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any whistleblowing disclosure could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Additionally, in the context of a settlement agreement whilst it is possible to settle a whistleblowing claim which already exists as at the date of entering into the agreement, it is not possible to use an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to prevent a worker from making a protected disclosure in the future. Any clause in an agreement which purports to prevent such disclosures will be rendered void by section 43J ERA, and is likely to invite SRA SRA Solicitors Regulation Authority investigation.

The imperative of making prohibitions and exclusions clear in the NDA

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.

Further potential factors to consider: including a whistleblowing carve out

You should include a properly drafted, clear carve for making a protected disclosure under the Public Interest Disclosure Act 1998/s43B ERA ERA Employment Rights Act 1996 (whistleblowing) in standard plain English. This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any whistleblowing disclosure could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Additionally, in the context of a settlement agreement whilst it is possible to settle a whistleblowing claim which already exists as at the date of entering into the agreement, it is not possible to use an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to prevent a worker from making a protected disclosure in the future. Any clause in an agreement which purports to prevent such disclosures will be rendered void by section 43J ERA, and is likely to invite SRA SRA Solicitors Regulation Authority investigation.
6. Have you included an express carveout for co-operating with a criminal or regulatory investigation or prosecution?
- Yes
- No
Have you included an express carveout for co-operating with a criminal or regulatory investigation or prosecution?
Including a criminal or regulatory investigation or prosecution carve out

You should include an appropriately worded carve out for cooperating with criminal or regulatory investigations or prosecutions. This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any comment made within a criminal or regulatory investigation or prosecution could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.
Existing regulatory obligations applicable to a regulated Organisation or Individual Existing regulatory obligations applicable to a regulated Organisation or Individual You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.
Existing regulatory obligations applicable to a Practitioner Existing regulatory obligations applicable to a Practitioner
Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
Existing regulatory obligations applicable to a regulated Organisation or Individual

You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.

Existing regulatory obligations applicable to a Practitioner

Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
Including a criminal or regulatory investigation or prosecution carve out

You should reconsider your position and include an appropriately worded carve out for cooperating with criminal or regulatory investigations or prosecutions. This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any comment made within a criminal or regulatory investigation or prosecution could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.
The imperative of making prohibitions and exclusions clear in the NDA The imperative of making prohibitions and exclusions clear in the NDA The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.
Existing regulatory obligations applicable to a regulated Organisation or Individual Existing regulatory obligations applicable to a regulated Organisation or Individual You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.
Existing regulatory obligations applicable to a Practitioner Existing regulatory obligations applicable to a Practitioner
Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
The imperative of making prohibitions and exclusions clear in the NDA

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.

Existing regulatory obligations applicable to a regulated Organisation or Individual

You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.

Existing regulatory obligations applicable to a Practitioner

Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
7. Have you included an express carveout for disclosure to regulators?
- Yes
- No
Have you included an express carveout for disclosure to regulators?
Including a carve out for disclosures to regulators

You should include an appropriately worded carve out for disclosure to regulators. This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any disclosure made to a regulator could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Whilst there may be circumstances where the parties entering into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. have not been or are unlikely to be compelled to participate or co-operate with a regulatory investigation or prosecution at the time an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is signed, this does not mean that the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. can prevent parties from making a unilateral voluntary notification to a relevant regulator in the public interest. A voluntary pro-active notification to a regulator (including in relation to information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ) may be necessary or appropriate where the party to the NDA is aware of wrongdoing or holds relevant information about a particular danger or risk for example, which a regulator should be notified about.
Existing regulatory obligations applicable to a regulated Organisation or Individual Existing regulatory obligations applicable to a regulated Organisation or Individual You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.
Existing regulatory obligations applicable to a Practitioner Existing regulatory obligations applicable to a Practitioner
Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
Existing regulatory obligations applicable to a regulated Organisation or Individual

You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.

Existing regulatory obligations applicable to a Practitioner

Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
Including a carve out for disclosures to regulators

You should reconsider your position and include a specific express carve out for disclosures to regulators in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , making it clear that it does not prevent the parties from making disclosures to a regulator. This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any disclosure made to a regulator could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Whilst there may be circumstances where the parties entering into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. have not been or are unlikely to be compelled to participate or co-operate with a regulatory investigation or prosecution at the time an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is signed, this does not mean that the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. can prevent parties from making a unilateral voluntary notification to a relevant regulator in the public interest. A voluntary pro-active notification to a regulator (including in relation to information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ) may be necessary or appropriate where the party to the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is aware of wrongdoing or holds relevant information about a particular danger or risk for example, which a regulator should be notified about.
The imperative of making prohibitions and exclusions clear in the NDA The imperative of making prohibitions and exclusions clear in the NDA The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.
Existing regulatory obligations applicable to a regulated Organisation or Individual Existing regulatory obligations applicable to a regulated Organisation or Individual You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.
Existing regulatory obligations applicable to a Practitioner Existing regulatory obligations applicable to a Practitioner
Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
The imperative of making prohibitions and exclusions clear in the NDA

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.

Existing regulatory obligations applicable to a regulated Organisation or Individual

You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.

Existing regulatory obligations applicable to a Practitioner

Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
8. Have you included an express carveout for reporting an offence to law enforcement agencies and HMRC?
- Yes
- No
Have you included an express carveout for reporting an offence to law enforcement agencies and HMRC?
Including a carve out for reporting an offence to law enforcement agencies and HMRC

You should include express carve out wording making it clear that reports to a law enforcement agency and HMRC are not prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any disclosure made to law enforcement agencies could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Any provision which prevents or seeks to impede or deter a person from reporting an offence to a law enforcement agency and HMRC would be an improper use of an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). and SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. . A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action. The NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. itself is likely also to be unenforceable.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
Existing regulatory obligations applicable to a regulated Organisation or Individual Existing regulatory obligations applicable to a regulated Organisation or Individual You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.
Existing regulatory obligations applicable to a Practitioner Existing regulatory obligations applicable to a Practitioner
Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
Existing regulatory obligations applicable to a regulated Organisation or Individual

You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.

Existing regulatory obligations applicable to a Practitioner

Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
Including a carve out for reporting an offence to law enforcement agencies and HMRC

You must reconsider your position and include express carve out wording making it clear that reports to a law enforcement agency and HMRC are not prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any disclosure made to law enforcement agencies could necessarily amount to a comment that the Organisation would deem untrue, derogatory or disparaging.

Any provision which prevents or seeks to impede or deter a person from reporting an offence to a law enforcement agency and HMRC would be an improper use of an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). and SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. . A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action. The NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. itself is likely also to be unenforceable.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
The imperative of making prohibitions and exclusions clear in the NDA The imperative of making prohibitions and exclusions clear in the NDA The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.
Existing regulatory obligations applicable to a regulated Organisation or Individual Existing regulatory obligations applicable to a regulated Organisation or Individual You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.
Existing regulatory obligations applicable to a Practitioner Existing regulatory obligations applicable to a Practitioner
Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
The imperative of making prohibitions and exclusions clear in the NDA

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.

Existing regulatory obligations applicable to a regulated Organisation or Individual

You should be aware that, if any of you, the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the agreement are regulated by a regulator then it is likely that one or more of you may have existing regulatory or professional obligations to (i) cooperate with regulatory investigations or prosecutions; and (ii) proactively disclose to the regulator wrongdoing or other information relevant to the regulator’s remit (including information covered by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. ). Such obligations would apply regardless of whether an express carve out was included in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. and would override any contrary provisions.

Regulators relevant to the parties to the proposed NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. could include but are not limited to: the Architects Registration Board, Bar Standards Board, Charity Commission for England and Wales, Financial Conduct Authority, General Dental Council, General Medical Council, General Pharmaceutical Council, Information Commissioners Office, Institute of Chartered Accountants in England and Wales, Nursing and Midwifery Council, Prudential Regulation Authority, Solicitors Regulation Authority.

Existing regulatory obligations applicable to a Practitioner

Furthermore, in the case of Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. , the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. make the following obligations clear, which strongly militate in favour of expressly including a carve out for co-operating with criminal or regulatory investigations or prosecutions and disclosure to regulators:
- Co-operate with the SRA SRA Solicitors Regulation Authority , other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services.
- Not to attempt to prevent anyone from providing information to the SRA SRA Solicitors Regulation Authority or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest.
- Promptly report to the SRA SRA Solicitors Regulation Authority , or another approved regulator, as appropriate, any facts or matters reasonably believed to be capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware.
Additionally, if you are a Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. regulated by the SRA SRA Solicitors Regulation Authority then the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that any failure to report a serious breach of the SRA's SRA Solicitors Regulation Authority regulatory requirements or other wrongdoing or criminal conduct, by you or your firm, or improperly using NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , may put you in breach of one or more of the following SRA SRA Solicitors Regulation Authority principles:

Principle 1: act in a way that upholds the constitutional principle of the rule of law, and the proper administration of justice
Principle 2: act in a way that upholds public trust and confidence in the solicitors' profession and in legal services provided by authorised persons
Principle 3: act with independence
Principle 5: act with integrity.

Practitioners should take particular note of a recent case (published 17 November 2021) where a solicitor accepted a rebuke from the SRA and was ordered to pay £600 of costs in circumstances where he had included a clause in a draft client settlement agreement attempting to prevent an opponent from making disclosures to HMRC. As HMRC is an investigative and prosecutor body, the solicitor was found to be in breach of Principle 2 of the SRA principles and paragraph 7.5 of the SRA Code of Conduct for Solicitors, RELs and RFLs.
9. Does the agreement contain any provision which could limit or inhibit the fact of or the substance of a report to a regulator or law enforcement agency? For example, is there an agreed statement or a mechanism under which the Individual has to notify the employer before making a report?
- Yes
- No
Does the agreement contain any provision which could limit or inhibit the fact of or the substance of a report to a regulator or law enforcement agency? For example, is there an agreed statement or a mechanism under which the Individual has to notify the employer before making a report?
Including any provision which could limit or inhibit the fact of or the substance of a report to a regulator or law enforcement agency

You must reconsider your position and remove any such provision. A provision which limits or inhibits the fact or substance of a report to a regulator or law enforcement agency would be in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). and the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. . A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.

Additionally you ought to include express wording making it clear that such reports to a regulator or law enforcement agency are not prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .

The imperative of making prohibitions and exclusions clear in the NDA The imperative of making prohibitions and exclusions clear in the NDA The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.

The imperative of making prohibitions and exclusions clear in the NDA

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.
Including any provision which could limit or inhibit the fact of or the substance of a report to a regulator or law enforcement agency

You should not include any provision which could limit or inhibit the fact of or the substance of a report to a regulator or law enforcement agency, as the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). expressly states that an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. would be improperly used if it sought to prevent, or seek to impede or deter, a person from reporting an offence to a law enforcement agency. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.

Additionally, you ought to include express wording making it clear that such reports to a regulator to law enforcement agency are not prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .

The imperative of making prohibitions and exclusions clear in the NDA The imperative of making prohibitions and exclusions clear in the NDA The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.

The imperative of making prohibitions and exclusions clear in the NDA

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.
10. Have you included an express carveout for seeking legal, medical or other professional advice (including tax advice)?
- Yes
- No
Have you included an express carveout for seeking legal, medical or other professional advice (including tax advice)?
Including a carve out for seeking legal, medical or other professional advice (including tax advice)

You should include express carve out wording for seeking legal, medical or other professional advice (including tax advice). This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any disclosure made to professional and/or medical advisers could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Using an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to prevent proper disclosure about the agreement or the circumstances surrounding the agreement to professional advisers, such as legal or tax advisors and/or medical professionals and counsellors, will be an improper use of an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). . A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action. The NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. may also be unenforceable.
Including a carve out for seeking legal, medical or other professional advice (including tax advice)

You should reconsider your position and include express carve out wording that makes it clear that disclosures to professional advisers, such as legal or tax advisors and/or medical professionals and counsellors (who are bound by their own professional duties of confidentiality) are not prohibited under the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any disclosure made to professional and/or medical advisers could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Using an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to prevent proper disclosure about the agreement or the circumstances surrounding the agreement to professional advisers, such as legal or tax advisors and/or medical professionals and counsellors, will be an improper use of an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). . A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action. The NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. may also be unenforceable.

The imperative of making prohibitions and exclusions clear in the NDA The imperative of making prohibitions and exclusions clear in the NDA The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.

The imperative of making prohibitions and exclusions clear in the NDA

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.
11. Have you included an express carveout for speaking to HMRC?
- Yes
- No
Have you included an express carveout for speaking to HMRC?
Including a carve out for speaking to HMRC

It is typical and appropriate (as recommended by the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 ) to include a carve out to allow an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. to speak to HMRC HMRC Her Majesty’s Revenue and Customs about tax matters that may arise out of the Individual’s engagement with the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or payments made under a settlement agreement containing an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . This may involve explaining details pertaining to their employment or engagement or details about the content and basis for the settlement.
Including a carve out for speaking to HMRC

You must reconsider your position, as the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 states that an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. should allow an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. to have discussions with HMRC HMRC Her Majesty’s Revenue and Customs .

It is typical to include such a carve out to allow the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. to speak to HMRC HMRC Her Majesty’s Revenue and Customs about tax matters that may arise out of the Individual's Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. engagement with the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or payments made under a settlement agreement containing an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , which may involve explaining details pertaining to their engagement or details about the content and basis for the settlement.

The imperative of making prohibitions and exclusions clear in the NDA The imperative of making prohibitions and exclusions clear in the NDA The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.

The imperative of making prohibitions and exclusions clear in the NDA

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.
12. Have you included an express carveout for obtaining consent for a future particular disclosure?
- Yes
- No
Have you included an express carveout for obtaining consent for a future particular disclosure?
Including a carve out for a future particular disclosure

Including a carve out and mechanism for specific disclosures that an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. may seek to make at a later stage can be useful to deal with future circumstances that the parties may not have contemplated at the date the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is entered into.
Including a carve out for a future particular disclosure

You should consider including a carve out and mechanism for specific disclosures that an Individual may seek to make at a later stage, as this can be useful to deal with future circumstances that you may not have contemplated as at the date of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .

Whilst consent can be requested at the relevant time, it is better to make explicit provision for it so the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is aware that even after they depart the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. they are free to approach it for this purpose and understand the mechanism for doing so.
13. Have you included an express carveout for disclosure in compliance with an order of a court or tribunal of competent jurisdiction?
- Yes
- No
Have you included an express carveout for disclosure in compliance with an order of a court or tribunal of competent jurisdiction?
Including a carve out for disclosure in compliance with an order of a court or tribunal of competent jurisdiction

You should include express carve out wording to make it clear that making a disclosure required by law, for example in compliance with an order of a court or tribunal of competent jurisdiction is not prohibited under the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any disclosure in compliance with an order of a court of competent jurisdiction could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Any provision which seeks to prevent a disclosure required by law would be an improper use of an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). . A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.
Including a carve out for disclosure in compliance with an order of a court or tribunal of competent jurisdiction

You should reconsider your position and include express carve out wording to make it clear that making a disclosure required by law, for example in compliance with an order of a court or tribunal of competent jurisdiction is not prohibited under the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . This carve out should also extend to any obligation not to make untrue, derogatory or disparaging comments as any disclosure in compliance with an order of a court of competent jurisdiction could necessarily amount to a comment that the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. would deem untrue, derogatory or disparaging.

Any provision which seeks to prevent a disclosure required by law would be an improper use of an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). . A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.

The imperative of making prohibitions and exclusions clear in the NDA The imperative of making prohibitions and exclusions clear in the NDA The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.

The imperative of making prohibitions and exclusions clear in the NDA

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). sets an expectation that Practitioners Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. ensure NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. are clear about what disclosures can and cannot be made and to whom. Failure to make it clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. which specific disclosures are not (and in many cases which cannot be lawfully) prohibited by the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , could give a misleading impression to the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. about the scope of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . It is therefore prudent to include this carve out for this purpose.
14. Have you included an express carveout for disclosure to a spouse, civil partner or partner?
- Yes
- No
Have you included an express carveout for disclosure to a spouse, civil partner or partner?
Including a carve out for disclosure to a spouse, civil partner or partner

The EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 provides that it is good practice to have a carve out to allow an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. to have discussions with their spouse, partner or other immediate family members (provided that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. must also in turn require them to keep the matter confidential).
Including a carve out for disclosure to a spouse, civil partner or partner

You should carefully reconsider your position, as the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 states that an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. should allow an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. to have discussions with their spouse, partner or other immediate family members (provided they are also asked to keep the matter confidential). Whilst this is good practice only, such a carve out should always be carefully considered in the interests of reasonableness.
15. Does your agreement contain an indemnity and/or claw back clause (i.e. a clause which requires an Individual to repay compensation or another benefit paid to them under the agreement in certain circumstances)? If so, is the clause triggered by breach of the NDA?
- Yes
- No
Does your agreement contain an indemnity and/or claw back clause (i.e. a clause which requires an Individual to repay compensation or another benefit paid to them under the agreement in certain circumstances)? If so, is the clause triggered by breach of the NDA?
Including indemnity and clawback clauses which are triggered by breach of the NDA

You should consider removing such indemnity or clawback clause from the agreement or removing any link between the clawback or indemnity clause and compliance with the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .

This kind of clause may not be connected to the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . However, its inclusion could inhibit disclosures which are otherwise permitted and therefore may undermine an otherwise appropriate NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .

Indemnity and clawback clauses risks Indemnity and clawback clauses risks The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that the SRA SRA Solicitors Regulation Authority would consider an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to be improperly used if warranties, indemnities and clawback clauses are included in a way which is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures being made, for example, asking a person to warrant that they are not aware of any reason why they would make a permitted disclosure, in circumstances where a breach of warranty would activate an indemnity or clawback clause. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.

Indemnity and clawback clauses risks

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that the SRA SRA Solicitors Regulation Authority would consider an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to be improperly used if warranties, indemnities and clawback clauses are included in a way which is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures being made, for example, asking a person to warrant that they are not aware of any reason why they would make a permitted disclosure, in circumstances where a breach of warranty would activate an indemnity or clawback clause. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.
Including indemnity and claw back clauses which are triggered by breach of the NDA

It is prudent not to include indemnity or clawback clauses which could inhibit disclosures which are otherwise permitted and therefore may undermine an otherwise appropriate NDA. NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential.

Indemnity and clawback clauses risks Indemnity and clawback clauses risks The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that the SRA SRA Solicitors Regulation Authority would consider an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to be improperly used if warranties, indemnities and clawback clauses are included in a way which is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures being made, for example, asking a person to warrant that they are not aware of any reason why they would make a permitted disclosure, in circumstances where a breach of warranty would activate an indemnity or clawback clause. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.

Indemnity and clawback clauses risks

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that the SRA SRA Solicitors Regulation Authority would consider an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to be improperly used if warranties, indemnities and clawback clauses are included in a way which is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures being made, for example, asking a person to warrant that they are not aware of any reason why they would make a permitted disclosure, in circumstances where a breach of warranty would activate an indemnity or clawback clause. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.
16. Does your agreement contain a warranty confirming that the Individual is not aware of any reason why they would make a disclosure which is otherwise permitted under the agreement?
- Yes
- No
Does your agreement contain a warranty confirming that the Individual is not aware of any reason why they would make a disclosure which is otherwise permitted under the agreement?
Warranty risks

You should reconsider your position and consider removing any warranties which require an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. to confirm that they are not aware of any reason why they would make a disclosure which is otherwise permitted under the agreement.

This kind of clause may be in the warranty section of the agreement and not connected to the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . However, its inclusion could inhibit disclosures which are otherwise permitted and therefore may undermine an otherwise appropriate NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .

Clawback clauses and warranty risks Indemnity and clawback clauses risks The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that the SRA SRA Solicitors Regulation Authority would consider an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to be improperly used if warranties, indemnities and clawback clauses are included in a way which is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures being made, for example, asking a person to warrant that they are not aware of any reason why they would make a permitted disclosure, in circumstances where a breach of warranty would activate an indemnity or clawback clause. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.

Indemnity and clawback clauses risks

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that the SRA SRA Solicitors Regulation Authority would consider an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to be improperly used if warranties, indemnities and clawback clauses are included in a way which is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures being made, for example, asking a person to warrant that they are not aware of any reason why they would make a permitted disclosure, in circumstances where a breach of warranty would activate an indemnity or clawback clause. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.
Warranty risks

It is prudent not to include a warranty which could inhibit disclosures which are otherwise permitted, as this may undermine an otherwise appropriate NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .

Clawback clauses and warranty risks Indemnity and clawback clauses risks The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that the SRA SRA Solicitors Regulation Authority would consider an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to be improperly used if warranties, indemnities and clawback clauses are included in a way which is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures being made, for example, asking a person to warrant that they are not aware of any reason why they would make a permitted disclosure, in circumstances where a breach of warranty would activate an indemnity or clawback clause. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.

Indemnity and clawback clauses risks

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that the SRA SRA Solicitors Regulation Authority would consider an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to be improperly used if warranties, indemnities and clawback clauses are included in a way which is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures being made, for example, asking a person to warrant that they are not aware of any reason why they would make a permitted disclosure, in circumstances where a breach of warranty would activate an indemnity or clawback clause. A Practitioner Practitioners Practitioners means solicitors, as well as others who are regulated by the SRA, including managers and employees of law firms, those responsible for managing Human Resources and complaints in law firms and other practitioners dealing with NDAs. who improperly uses an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or acts in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). will be at risk of disciplinary action.
17. Does the agreement contain an obligation on the Individual not to make a future Data Subject Access Request under data protection legislation?
- Yes
- No
Does the agreement contain an obligation on the Individual not to make a future Data Subject Access Request under data protection legislation?
Seeking to prevent future Data Subject Access Requests under data protection legislation

You should reconsider your position and remove any obligation on the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. which seeks to prevent them from making a future Data Subject Access Request under data protection legislation.

Whilst an obligation not to make a Data Subject Access Request may not always be directly related to or contained within the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. itself, this type of clause is likely to be unenforceable (because it is seeking to waive a fundamental right under the UK General Data Protection Regulation which does not provide a mechanism for waiver). It is therefore arguably a clause in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , which classifies the inclusion or proposed inclusion of clauses known to be unenforceable as an improper use of an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
Seeking to prevent future Data Subject Access Requests under data protection legislation

It is prudent not to include an obligation on the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. which seeks to prevent them from making a future Data Subject Access Request under data protection legislation.

Whilst an obligation not to make a Data Subject Access Request may not always be directly related to or contained within the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. itself, this type of clause is likely to be unenforceable (because it is seeking to waive a fundamental right under the UK General Data Protection Regulation). It is therefore arguably a clause in breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , which classifies the inclusion or proposed inclusion of clauses known to be unenforceable as an improper use of an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
18. Is the Individual prevented from keeping a copy of the agreement?
- Yes
- No
Is the Individual prevented from keeping a copy of the agreement?
Seeking to prevent an Individual from keeping a copy of the agreement

A clause or other restriction that prevents an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. keeping a copy of the agreement is very unusual. It is likely to be considered as oppressive and in direct breach of the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). .

It is important to ensure that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. receives a copy of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . This is usually in the best interests of both parties, both of whom should be able to review the terms of the agreement to which they have agreed at any time of their choosing without restriction.
Further potential factors to consider: taking unfair advantage Further potential factors to consider: taking unfair advantage
Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements Further potential factors to consider: statutory settlement agreements
If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs Further potential factors to consider: drafting NDAs
Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: taking unfair advantage

Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs

Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Providing the Individual with a copy of the agreement

It is important to ensure that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. receives a copy of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . This is usually in the best interests of both parties, both of whom should be able to review the terms of the agreement to which they have agreed at any time of their choosing without restriction.
Further potential factors to consider: taking unfair advantage Further potential factors to consider: taking unfair advantage
Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements Further potential factors to consider: statutory settlement agreements
If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs Further potential factors to consider: drafting NDAs
Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: taking unfair advantage

Additionally, if you, your employing organisation, or the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. or Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. who is entering into the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , are regulated by the SRA you should particularly take note of the SRA Codes of Conduct SRA Codes of Conduct SRA Code of Conduct for Solicitors, RELs and RFLs and Code of Conduct for Firms. in this regard, which provides that you do not abuse your position by taking unfair advantage of clients or others.

The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). makes clear that taking unfair advantage of an opposing party would result in a breach of your professional obligations. Further, where the opposing party is unrepresented your obligations to make sure there is no abuse of position, or unfair advantage taken is heightened. Taking unfair advantage is listed as including (but is not limited to):
- Taking advantage of an opposing party’s lack of legal knowledge or where they have limited access to legal representation or advice. For example, proposing or including a clause which you know to be unenforceable, or threatening to litigate upon such a clause.
- Applying undue pressure or using inappropriate, aggressive or oppressive tactics in your dealings with the opposing party or their representative. For example, imposing oppressive and artificial time limits on a vulnerable opposing party to agree the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. .
- Seeking to rely on your position as a solicitor as a means of exerting power over the opposing party. For example, by discouraging them from taking legal advice.
- Preventing someone who has entered into an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. from keeping or receiving a copy.
Further potential factors to consider: statutory settlement agreements

If the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is in a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 and the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is not represented at the point you get involved, then to be enforceable you should ensure the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. obtains independent advice on its terms and effect before it is signed. You should also ensure the settlement agreement complies with the other statutory requirements in section 203 ERA ERA Employment Rights Act 1996 . It is usual and best practice for the Organisation Organisation A counterparty to an NDA which is the employing organisation of an Individual, including but not limited to a company, partnership or limited liability partnership. to pay a reasonable contribution to enable that advice to be taken. If an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is contained in a settlement agreement which is unenforceable, there is a reasonable likelihood that not only will the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. also be unenforceable but the SRA will investigate.

Further potential factors to consider: drafting NDAs Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
Further potential factors to consider: drafting NDAs

Further and in all cases, you should also ensure that you comply with the following as set out in the SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). , when dealing with NDAs NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. :
- Use standard plain English, which should be easily understandable to any lay person.
- Make sure that the terms are clear and relevant to the issues and claims likely to arise.
- Be clear in the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. what disclosures can and cannot be made and to whom.
- Provide clear advice, potentially in writing, to your client about the terms of the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. to help ensure that there is no confusion about what is or is not permitted.
- If the agreement forms part of a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 , to ensure that you are aware of the requirements governing those agreements, including for the employee to be in receipt of independent advice.
- Even if the agreement is not a settlement agreement under section 203 ERA ERA Employment Rights Act 1996 it is preferable that the individual has been advised to seek their own independent legal advice.
19. Could the Individual be under duress (unjustified pressure) to sign the NDA?
- Yes
- No
Could the Individual be under duress (unjustified pressure) to sign the NDA?
Handling an Individual under potential duress

You must re-consider your position if you know or suspect that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is being put under duress by anyone to enter the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. . If an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is under duress to sign an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 makes clear it will be unenforceable.

Duress is defined in the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 as when:
- the worker is placed under unjustified pressure by the employer to sign the contract
- that pressure was a significant cause of the worker signing the contract
- and because of the pressure the worker had a lack of choice as to whether to sign the contract.
Duress can be created by, amongst other things, imposing unreasonable time limits to review the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or by presenting it as an unjustified requirement for receiving a benefit, for example stating that a higher or any ex gratia sum will only be paid if an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is signed. Duress may also be presumed if the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is vulnerable, e.g on mental health or other grounds.

If you know or suspect duress and your client continues to insist on the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or the unjustified pressure being applied, you will need to consider withdrawing from acting. You should take regulatory advice on your position. The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that “your duty to act in the best interest of your client does not override your professional obligations to uphold the proper administration of justice, act in a way that maintains public trust and confidence, and to act with independence and integrity. If your client’s instructions are to act in a way that is inconsistent with [the SRA’s] requirements, you will need to consider whether you can continue to act for them.”
Handling an Individual under potential duress

If an Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is under duress to sign an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. , the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 makes clear it will be unenforceable.

Duress is defined in the EHRC Guidance EHRC Guidance The Equality and Human Rights Commission’s guidance on “The use of confidentiality agreements in discrimination cases” October 2019 as when:
- the worker is placed under unjustified pressure by the employer to sign the contract
- that pressure was a significant cause of the worker signing the contract
- and because of the pressure the worker had a lack of choice as to whether to sign the contract.
Duress can be created by, amongst other things, imposing unreasonable time limits to review the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or by presenting it as an unjustified requirement for receiving a benefit, for example stating that a higher or any ex gratia sum will only be paid if an NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. is signed. Duress may also be presumed if the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is vulnerable, e.g on mental health or other grounds.

Even if you do not believe that the Individual Individual A counterparty to an NDA which could include but is not limited to employees, workers, apprentices, partners, limited liability partnership, members and job applicants. is being put under duress, you should remain vigilant for any signs. If at any point you become aware of or suspect duress and your client continues to insist on the NDA NDA A non-disclosure agreement. An NDA usually refers to an agreement or contract, or a clause within a wider agreement or contract, under which it is agreed that certain information will be kept confidential. or the unjustified pressure being applied, you may need to consider withdrawing from acting. You should take regulatory advice on your position. The SRA Warning Notice SRA Warning Notice SRA warning notice dated 12 March 2018 (updated on 12 November 2020). states that “your duty to act in the best interest of your client does not override your professional obligations to uphold the proper administration of justice, act in a way that maintains public trust and confidence, and to act with independence and integrity. If your client’s instructions are to act in a way that is inconsistent with [the SRA’s] requirements, you will need to consider whether you can continue to act for them.”
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