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Non-disclosure agreements and confidentiality clauses in an employment law context

12 December 2019

This practice note is about confidentiality provisions that have been drafted as part of an agreement to end a workplace relationship.

It focuses on situations in which these provisions are aimed at preventing disclosure of conduct or other circumstances which, for example, may have led to a dispute or to the breakdown of the relationship between an individual and the business for which they work.

Legal status

SRA Standards and Regulations

In dealing with non-disclosure agreements (NDAs), you should  have regard specifically to the following paragraphs from the Code of Conduct for Solicitors, RELs and RFLs and the Code of Conduct for Firms:

  • You do not abuse your position by taking unfair advantage of clients or others (paragraph 1.2 of the Code of Conduct for Solicitors, RELs and RFLs and paragraph 1.2 of the Code of Conduct for Firms)
  • You cooperate with the SRA, other regulators, ombudsmen, and those bodies with a role overseeing and supervising the delivery of, or investigating concerns in relation to, legal services (paragraph 7.3 of the Code of Conduct for Solicitors, RELs and RFLs and paragraph 3.2 of the Code of Conduct for Firms)
  • You do not attempt to prevent anyone from providing information to the SRA or any other body exercising regulatory, supervisory, investigatory or prosecutory functions in the public interest (paragraph 7.5 of the Code of Conduct for Solicitors, RELs and RFLs and paragraph 3.10 of the Code of Conduct for Firms)
  • You report promptly to the SRA, or another approved regulator, as appropriate, any facts or matters that you reasonably believe are capable of amounting to a serious breach of their regulatory arrangements by any person regulated by them (including you) of which you are aware (paragraph 7.7 of the Code of Conduct for Solicitors, RELs and RFLs and paragraph 3.9 of the Code of Conduct for Firms)

The SRA Principles

There are seven mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles that are relevant to this practice note are:

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

Terminology

Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should - Outside of a regulatory context, good practice for most situations in the Law Society’s view. In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

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