Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Chris Hadrill, partner in the employment team at Redmans, explains what “gagging clauses” are, what they are used for, and what makes these clauses so controversial


What is a “gagging clause”?

A “gagging clause” is the colloquial term commonly used in the media to describe confidentiality obligations under a contract (normally a ‘settlement agreement’). These clauses normally impose an obligation on one or more parties not to disclose particular information to third parties – they normally preclude one (or more) of the parties to the agreement from disclosing the existence, terms or circumstances of the agreement.

What are “gagging clauses” used for?

Gagging clauses are normally used to prevent one or more parties to an agreement from disclosing particular information, as identified above. There are many reasons why a party (normally an employer with settlement agreements) would want to prevent an employee from disclosing the existence or terms of a settlement agreement – this can range from a desire to ensure that potentially embarrassing facts are kept as secret as possible, to ensure that other employees don’t use the terms negotiated as a precedent if they’re seeking to negotiate their own deal, and to ensure that morale in a department isn’t damaged by the deal.

Who most commonly uses “gagging clauses”?

In the context of settlement agreements “gagging clauses” are most commonly used by employers seeking to prevent employees (and other third parties) from disclosing to the public the existence, terms and effect of the relevant settlement agreement.

Why are these clauses so controversial?

“Gagging clauses” have proved controversial for a variety of reasons, including:

  1. They, on a broad level, seek to impose swingeing restrictions on an employee’s freedom of speech
  2. They can sometimes be used to prevent disclosure of criminal wrongdoing or regulatory breaches (for example, victims of sexual harassment at work may be required to agree not to disclose the circumstances of the harassment they suffered in order to obtain a payout; equally there has been concern that public bodies such as the NHS may be using, or may have used, confidentiality restrictions in order to prevent the publication of legitimate concerns about public safety)
  3. The ability of the employer to impose powerful confidentiality clauses is strengthened by the nature of the power structures that exist within a workplace. Or, to put it another way, the employer has the resources to make life difficult for an employee if the employee is reluctant to agree to confidentiality restrictions (for example, the employer could withdraw the settlement agreement or refuse to pay a particular sum of money if the employee won’t agree to the confidentiality restrictions

Although concerns about how gagging clauses are used are legitimate, such clauses do serve an important function in limiting risk to all parties to an agreement (including, of course, reputational risk to employers). Given the importance of gagging clauses, rather than imposing a ban on the use of these clauses (as has been suggested by some national newspapers and public bodies), a more balanced view needs to be taken of the cost and benefit of ‘gagging clauses’ in particular situations – imposing ‘gagging clauses’ to prevent a victim of sexual harassment or a concerned doctor from disclosing their concerns to the proper authorities (or their lawyer or employer) is clearly wrong, but, equally, in some circumstances the victim of, for example, an incident of sexual harassment may wish to prevent details of the harassment from being made public. Banning ‘gagging clauses’ would therefore be a clumsy broadbrush measure which would prevent parties to settlement agreements from taking into account, and pricing, the risk and benefits of including confidentiality clauses in such agreements.

As a final point, it is also important to point out that under section 43K Employment Rights Act 1996 it is unlawful for employers to prevent employees from making protected disclosures (also known as ‘whistleblowing’) – this means that employers should not be able to rely on confidentiality clauses/’gagging clauses’ to prevent employees from, for example, disclosing criminal conduct on their employer’s part to the police or disclosing a regulatory breach to a regulator.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.78 Average

143 Reviews

Liz P

An excellent professional service was provided by Chris Hadrill and Mel Chin. Efficient and trustworthy - would highly recommend this company.

Posted 6 days ago

Anonymous

Redmans Solicitors were great. They were able to advice me quickly and efficiently! I would recommend them, as a good solicitors to use.

Posted 6 days ago

Anonymous

Extremely efficient. Mel made a difficult situation bearable and gave good clear guidance thoughout.

Posted 1 week ago

Anonymous

Thanks Chris and Sacha I was reassured throughout the process and a happy outcome

Posted 1 week ago

Edward F

Good and clear employment advice

Posted 1 week ago

Richard O

Chris at Redmans is my go-to legal expert when it comes to employee-related matters. His depth of knowledge, experience and considered approach to problems and their solutions is highly valuable. I cannot recommend Redmans highly enough.

Posted 3 weeks ago

Rory Y

They provide me with timely and clear advice!

Posted 3 weeks ago

Steven C

Redmans handled my settlement with my employer quickly, decisively and to a standard that I was very happy with. I would in similar circumstances contract them again

Posted 3 weeks ago

Deepthi K

Transparent. Clear communication. Prompt reply’s. Saves lot of time. Very satisfied.

Posted 3 weeks ago

Anonymous

Chris and Sacha did a fantastic job and negotiated a significant better settlement agreement

Posted 3 weeks ago

Dino D

I did get a very swift and god service from Redmans

Posted 3 weeks ago

Stephanie H

Clear, prompt, effective support from Chris which has been very much appreciated. Thank you again.

Posted 1 month ago

Anonymous

I would highly recommend Redmans Solicitors, the team were very friendly and my case was dealt with professionally and efficiently. Thank you!

Posted 1 month ago

Shane M

Very professional, welcome advice at a crucial time. Always available and reasonable cost.

Posted 1 month ago

Anonymous

My case was relatively straight-forward. But even so, working with Redmans was easy, quick, professional & clear. Many thanks

Posted 1 month ago

Anonymous

The team were very helpful and answered all my questions regarding my redundancy. Initially I had a call with one of the representatives who escalated my request to a suitable employment solicitor. We arranged a call to discuss the settlement and she helped answer all my questions. We then mainly contacted through email which helped resolve the settlement quickly and convently. Thanks for all the help.

Posted 1 month ago

Djaouida T

You have good communication.

Posted 2 months ago

Anonymous

Fast and professional. A highly recommended company for employment related issues.

Posted 2 months ago

Anonymous

Very professional service.

Posted 2 months ago

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 9 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 11 months ago