Non-Disclosure Agreements in Scotland

Non-Disclosure Agreements (NDAs) were originally used to keep commercial business information and trade secrets confidential.

In more recent years, the use of NDAs to try to silence allegations of abuse and harassment has generated significant publicity. There is no sign of that controversy abating.

Earlier this month, the Arbitration service Acas published guidance to firms and workers about NDAs, including how to avoid misuse. The point is made that NDAs cannot prevent an individual from reporting wrongdoing in the public interest, known as making a protected disclosure or ‘whistleblowing’. This could include disclosing a criminal offence, dangers to health and safety, or failure to comply with a legal obligation. NDAs also cannot prevent an individual from taking a matter to an employment tribunal. The advice given by Acas to employees is to consult a trade union or lawyer when considering signing an NDA.

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