need help with a NDA

[Jennifer23]

Hi, first time here - hopefully im doing things right.
Im going to employment tribunal next week but am expecting an offer to come in from my ex employers before it goes to court. I have no doubt they will lose - they know that too. I don't want to accept any offer - i want to see it through, i am very confident in the case.

I may be forced to accept the offer as i am using legal insurance to oversee my case. Part of that deal is that i have to accept a fair or reasonable offer. I get that - fair enough.
My question is - what if that offer comes with a NDA - will i still be forced into taking it - my argument would be that my rights to free speech is being taken away. Any idea what the insurers would do?
thanks

[ULA]

In most situations where a settlement is agreed, either as part of the ending of employment, or a negotiated settlement reached prior to an ET hearing there will often be a requirement for NDA. This is more that likely to relate to the specific terms of the agreement and confirmation of any ongoing requirements on confidentiality due any relevant clauses in your contract of employment in regard to confidential or sensitive information. If that is the nature of the NDA contained in any agreement documentation you receive then it is likely, assuming all other terms are acceptable, your legal insurer will encourage you to sign it.

You may have a “cast iron case” but going through an ET is not a pleasant experience and can be very stressful even with legal representation and you are at the mercy of a Judge who may not see the case in the same way you do.

Just for further reference, the Solicitors Regulation Authority (SRA) last year did issue a warning to law firms and solicitors that it will be tough on the misuse of NDAs used in limited specific circumstances, particularly where the aim of the NDA is to protect the disclosure of serious misconduct which would be criminal or in breach of regulatory rules.

The SRA has listed those circumstances in which it would consider the NDA to have been improperly used in breach of its rules. These circumstances are where any provision prevents or seeks to deter a person from:

• reporting misconduct or a serious breach of regulatory requirements to the SRA, or making an equivalent report to any other body responsible for supervising or regulating the matters in question;
• making a protected disclosure under the Public Interest Disclosure Act 1998 (whistleblowing disclosures);
• reporting an offence to a law enforcement agency such as the police
• co-operating with a criminal investigation or prosecution

So if the NDA did prevent any of the above then I suggest that you do have a discussion with your legal insurer to get their advice.

[Jennifer23]

thanks very much for the reply.
That's great info and i've taken onboard the advice.

Let's take a theoretical that the case is "cast iron" and I have done absolutely nothing wrong and been a model employee. Also that news of the way i have been handled would cause headlines and severe embarrassment for the employer. ( My MP and Shadow Business, Energy and Industrial Strategy Minister are also keeping updated with my case)

My worry is that i will have to accept a lower than the maximum amount i can get at court. I am confident that the tribunal will have never seen a worse case.

My viewpoint is that if the offer (which will have a NDA attached) is not the maximum i can achieve at court i want to either hold out out until it is or go to court. Im happy to take the risk

The only thing that might stop me is the insurer telling me i have to accept or they withdraw their services.



I wouldn't be whistleblowing, i wouldn't be reporting to the police etc and i wouldn't be part of a prosecution. I am however in contact with parliament to show how employment laws have been abused and the lack of a reasonable punishment to the employer.

I know everyone thinks their case is cast iron etc when its not, but for the sake of my question if you could assume that is the case - thanks


There's no way they will give me an offer without a NDA
I know you say that they can encourage me to sign it but can they make me sign it?

[ULA]

Ultimately your legal insurer cannot make you sign it but as you have already pointed out they could refuse to represent you further in the event that you did not and the matter continued to an ET.

[Jennifer23]

thats - that was essentially the crux of my question - can they take away my funding if i chose not to sign the NDA. I was hoping they couldn't. ill certainly pressurise them as much as possible. Thanks for your help

[Nomoneynoproblem]

Hi

Out of interest has ACAS been involved in this matter at all as they usually try to resolve matters between parties before it gets to a Tribunal and they normally help to negogiate settlements. From my experience of Tribunals it's always very difficult to predict outcomes unless it's pretty obvious that the employer has broken every singe rule in the book. Sometime one might think they have a good case and usually fail on a technicality or the contributing actions of the claimant that led up to the action taken by the employer in question. If you are so sure that your case is 100% then you might want to look up similar judgements and look at the amount of compensation awarded that should help in negogiating a NDA.

Good Luck