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 first name (required)

Your last name (required)

Your email (required)

Your telephone number (required)

Brief details of your enquiry

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

4.76 Average

197 Reviews

Rosa B

Fabulous service all round.

Posted 2 days ago

Anonymous

Redmans were quick to respond to my enquiry and dealt with my case professionally and personably. I received sound advice and was put at ease by Chris Hadrill, Partner.

Posted 2 days ago

Alkhas K

Excellent service.

Posted 1 week ago

Mathias G

Contacted them regarding my end of employment agreement. Chris Hadrill dealt with it and was done and handed back to employer same day more than happy with there service.

Posted 4 weeks ago

Mark W

Most professional from start to finish offering very a personal service. Most impressive and quick when dealing with the matters in hand.

Posted 1 month ago

Anonymous

Posted 1 month ago

submit

I am very glad I came across Redmans Solicitors. Fantastic service!

Posted 1 month ago

Anonymous

Fantastic communication, always happy to answer queries, highly recommended.

Posted 1 month ago

Wavenie B

They were very straight to the point, friendly and understanding people. I felt they had my best interest. They were easy to get hold of, replies were almost instant. 5/5 for customer service

Posted 1 month ago

Christina P

Caroline was fantastic to work with - extremely knowledgeable, supportive, thorough and honest. I definitely recommend Redmans!

Posted 1 month ago

Anonymous

Very well done and fast support. Professional and reliable. Highly recommended!

Posted 1 month ago

Helene L

They were very knowledgable in the respected area in terms of change in law/regulations that is crucial for the clients who are seeking for legal arvice.

Posted 1 month ago

Sara R

Very helpful and wonderful advice

Posted 1 month ago

Marie D

very good service all digitalised

Posted 2 months ago

Philip H

Chris Hadrill handled my case with great accuracy and efficiency. Basically made it feel like a process without hassle. Doesn't try to expand the case just for greater fees. I value his professional advice highly.

Posted 2 months ago

Michael W

Professional, responsive and supportive - excellent service!

Posted 2 months ago

Anonymous

I was really happy with the service provided. I had to chase a couple of time but despite that, my matter was dealt with in a timely manor. I would use again in the future

Posted 2 months ago

Lee M

Superb service and always available

Posted 2 months ago

Jonathan S

I was very grateful for the support I received from Redmans during a very difficult period. Rana Tandon really got under the skin of my issue and understood what was important to me, steering me carefully and sensibly to an outcome I was very happy with. I would recommend Redmans to anyone else without any reservations whatsoever.

Posted 2 months ago

Mohamed A

Super helpful and efficient, trustworthy service

Posted 2 months ago

Anonymous

efficient, responsive and effective

Posted 2 months ago