Employee Non-Disclosure Agreement (England & Wales)

An Employee Non-Disclosure Agreement in the United Kingdom binds the parties to keep specified information confidential and limits how it may be used or disclosed, under the framework of the Trade Secrets (Enforcement) Regulations 2018. It restricts disclosure and use of designated confidential information between the disclosing and receiving parties.

The landmark Court of Appeal decision in Faccenda Chicken Ltd v Fowler [1987] Ch 117 established a crucial distinction in English employment law. During employment, the implied duty protects all confidential information. After employment ends, however, the implied duty only extends to protecting trade secrets and information of a sufficiently high degree of confidentiality — it does not protect the broader category of mere confidential information, such as pricing structures, client preferences, or operational procedures. This gap is precisely what an Employee NDA is designed to fill.

An Employee NDA creates express contractual obligations that survive the termination of the employment relationship. It binds the employee to protect all categories of confidential information — not merely trade secrets — for a specified period after they leave. Without such an agreement, a departing employee is legally free to use or disclose any confidential information that falls short of the trade secret threshold, even if that information would cause substantial commercial harm to the former employer.

The legal environment for employee confidentiality agreements in England and Wales has evolved significantly in recent years. The Trade Secrets (Enforcement, etc.) Regulations 2018 (S.I. 2018/597), which implemented the EU Trade Secrets Directive into domestic law and remain in force following Brexit, introduced a statutory framework for protecting trade secrets that supplements the existing common law. These Regulations provide a clear statutory definition of what constitutes a trade secret and offer additional remedies — including interim injunctions, damages, delivery up of infringing goods, and publication of judgments — that were not previously available under common law alone.

Equally important is the legal framework governing what an Employee NDA cannot restrict. Under section 43J of the Employment Rights Act 1996 (as inserted by the Public Interest Disclosure Act 1998), any contractual provision that purports to prevent a worker from making a protected disclosure — commonly known as whistleblowing — is void and of no effect. From 1 October 2025, the Victims and Prisoners Act 2024 further restricts the use of NDAs by providing that any agreement entered into on or after that date cannot prevent a victim (or someone who reasonably believes they are a victim) from disclosing information about criminal conduct to police, legal advisers, healthcare professionals, regulators, victim support services, or close family members.

An Employee NDA is appropriate — and strongly recommended — in any employment relationship in England and Wales where the employee will have access to confidential business information, proprietary systems, client data, or trade secrets. While the implied duty of fidelity provides some protection during employment, the limitations of common law after termination make a written agreement essential for any employer that takes the protection of its information seriously.

The most common situations in which an Employee NDA should be used include the onboarding of new employees in senior, technical, or client-facing roles. A sales director who has access to your entire client database, a software engineer who works on your proprietary algorithms, or a finance manager who sees your company's revenue figures and pricing margins should all be required to sign an Employee NDA as a condition of employment or during the course of employment when they assume new responsibilities.

Employee NDAs are particularly critical in technology and software companies, where the line between an employee's general skill and knowledge (which they are always entitled to use) and the employer's trade secrets (which they are not) is often blurred. English courts have consistently held that employees are entitled to use the general skills and knowledge they have acquired during their employment — even if those skills were developed using the employer's resources. An Employee NDA helps define the boundary by specifying exactly what information is considered confidential.

In regulated industries such as financial services, healthcare, and legal services, an Employee NDA is often a regulatory expectation. The Financial Conduct Authority expects firms to have appropriate information barriers and confidentiality arrangements. Similarly, organisations handling personal data under the UK GDPR and Data Protection Act 2018 have a legal obligation to confirm that employees who access personal data are bound by appropriate confidentiality obligations.

An Employee NDA should also be used when an employee is being promoted into a role with greater access to sensitive information, when an employee is about to be involved in a sensitive project (such as a merger or acquisition), or when an employer suspects that an employee may be planning to leave and join a competitor. In this last situation, the NDA serves as both a deterrent and a basis for legal action if the employee does misappropriate confidential information.

An Employee NDA under the law of England and Wales cannot be used as a gagging clause to prevent the reporting of wrongdoing. Any attempt to use an NDA to silence a whistleblower is not only unenforceable under section 43J of the Employment Rights Act 1996 but may also expose the employer to a claim for detriment or automatic unfair dismissal.

A well-drafted Employee NDA for use in England and Wales must contain several key provisions that reflect the specific legal framework governing employment relationships in this jurisdiction.

The definition of Confidential Information is the foundation of the entire agreement. It must be drafted with sufficient breadth to cover all genuinely sensitive business information while being specific enough to withstand judicial scrutiny. English courts have consistently held that vague or overly broad definitions are harder to enforce. The definition should expressly incorporate the statutory definition of trade secrets from the Trade Secrets (Enforcement, etc.) Regulations 2018 — information that is secret, has commercial value because it is secret, and has been subject to reasonable steps to keep it secret. It should also list specific categories of protected information, such as client lists, pricing data, financial projections, technical specifications, source code, and business strategies.

The obligations during employment clause reinforces the implied duty of fidelity and imposes express contractual obligations that are easier to enforce than implied terms. It should cover the use of information only for work purposes, restrictions on copying or storing information outside approved systems, and an obligation to report any suspected breaches.

The post-employment obligations clause is where the Employee NDA provides protection beyond what common law offers. For information that falls below the trade secret threshold, the agreement should specify a reasonable fixed period — typically 12 to 24 months — during which confidentiality must be maintained. For trade secrets, the obligation should be stated as continuing indefinitely. Courts will assess reasonableness by reference to the nature of the information, the employee's role, and the duration of the restriction.

The whistleblowing and permitted disclosures clause is not optional — it is a legal necessity. Under the Public Interest Disclosure Act 1998, any NDA term that restricts protected disclosures is void. Under the Victims and Prisoners Act 2024, restrictions on disclosures about criminal conduct to specified persons are similarly void for agreements entered into on or after 1 October 2025. A strong Employee NDA will include an express carve-out acknowledging both statutes.

The return of materials clause requires the employee to hand back all physical and electronic materials containing confidential information upon termination. In the modern workplace, this includes obligations to delete information from personal devices, cloud storage accounts, and personal email accounts. The remedies clause should preserve the employer's right to seek injunctive relief from the courts of England and Wales and, where applicable, remedies under the Trade Secrets Regulations 2018. A garden leave clause is a valuable addition for senior employees — it allows the employer to keep the employee away from the workplace during their notice period, reducing the risk of information being taken to a competitor.

Under the Employment Rights Act 1996, the Employment Tribunal adjudicates workplace disputes. Section 94 of the Employment Rights Act 1996 provides the right not to be unfairly dismissed. The Advisory, Conciliation and Arbitration Service (ACAS) provides early conciliation under Section 18A of the Employment Tribunals Act 1996. The UK GDPR and Data Protection Act 2018 govern personal data handling. HM Revenue and Customs (HMRC) administers PAYE and National Insurance contributions under the Income Tax (Earnings and Pensions) Act 2003. The forms-legal.com Employee Non-Disclosure Agreement (England & Wales) template covers the mandatory elements under Trade Secrets (Enforcement) Regulations 2018.