We are all familiar with the ‘Me Too’ movement following the sexual misconduct scandal which struck Hollywood a few years ago. The famous director Harvey Weinstein was at the centre of several sexual allegations.

In the UK, another prominent figure, Philip Green, was similarly accused of sexual abuse allegation in relation to some of his staff.

In 2018 a further scandal came to light, where a charity fundraising dinner organised by the President Club, resulted in several hostesses being sexually assaulted.

There has also been a plethora of other cases in the City where settlement agreements have been entered into involving city lawyers, bankers and accountants and employees who have been alleged victims of sexual abuse in the workplace.

All these cases have one thing in common: in each of them the victims entered into settlement agreements with their attackers’ terms that were confidential to the parties. The result was that the victims were often silenced for a price.

A confidentiality clause (or non-disclosure agreement), is typically any clause or an agreement, where the parties have agreed not to disclose certain information (e.g. pre-contractual negotiations, the terms and/or existence of the settlement agreement) upon the terms agreed between themselves. These clauses may be accompanied by “non-disparagement” clauses, i.e. clauses where parties agree that they will not say or do anything that may disparage the other causing potential reputational harm or embarrassment.

In this article, we will assess if such a clause is shariah compliant, if so, then what is the limit to its usage.

Keeping a secret in Islam

Allah says in the Quran: O ye that believe! betray not the trust of Allah and the Messenger, nor misappropriate knowingly things entrusted to you. [Al-Anfal: 27]

The Arabic word used in the verse is Khiyanat. Qurtubi says: Khiyanat means to betray and to expose something. The word Khiyanat in Arabic comes from the root word Khawn which means ‘imperfection’. The inference being that betrayal is an attempt to portray imperfection within the betrayed individual.

The use of the word Khiyanat demonstrates the seriousness with which Islam treats betrayal. It is for this reason that as part of his supplication, the Prophet Muhammed (PBUH) would say: “O Allah! I seek refuge in You from hunger; surely, it is the worst companion. And I seek refuge in You from treachery; surely, it is a bad inner trait.”

Confidentiality in the context of work:

Having secrets and/or sharing them with others is not impermissible in Islam per se. We all, to some degree or another, have secrets that we either keep to ourselves or share them with people that we trust in confidence. The Prophet Muhammed (PBUH) also had secrets that he shared with others. For example, Hudhayfah Ibn Al Yaman (ra) was known as the keeper of Prophet Muhammed’s (PBUH) secrets.

For Muslim business owners, having confidentiality clauses in their employment contracts, for example, does not and would not contravene the Shariah.

It is equally imperative for a Muslim employee, to honour the agreement of his/her contract, and to abide by any confidentiality clause that he or she may have agreed to.

Allah says: O you who have believed, fulfil [all] contract. [Al Maidah: 1]

Indeed, Islam has placed huge importance on fulfilling the conditions of treaties, contracts, and agreements. Failing to be loyal, betraying others, breaking promises, and agreements, are all deemed to be signs of hypocrisy.

How long can you be bound to secrecy from an Islamic perspective?

Under English law, parties are free to enter into whatever contractual terms they agree. There is no stipulated time frame for such clauses to remain valid and enforceable. Depending on the precise facts and circumstances, the period of confidentiality may vary. In commercial non-disclosure agreements, parties may typically agree a period of 10 – 15 years, whereas in confidential settlement agreements and/or non-disparagement clauses there may be no time limit at all.  In employment contracts, confidentiality clauses may be for far shorter periods.

From a Sharia perspective, a secret in Islam must be kept forever if needed. But, if the customary business practise and/or contractual agreement is to limit “confidentiality” to only a certain fixed period, then there would be nothing wrong if the employee released the information after the expiry of the fixed contractual and/or agreed period. In such circumstances, the prevalent custom would be a relevant factor and taken into consideration.

Confidentiality clauses often exclude information that is already in the public domain. Logically a matter cannot be a secret and/or confidential to the parties if it is already known.   The same can be said about the Islamic approach. There is one anecdote that could be used as precedent in Shariah law.  Once, Umar (ra), approached Abu Bakr (ra), and offered his daughter’s hand in marriage to him. At the time Abu Bakr did not reply to the offer. Later, the prophet (pbuh) married Umar’s daughter. Sometime after the marriage, Abu Bakr (ra) met with Umar (ra) and told him that initially he did not reply to his offer because the Prophet (pbuh) had mentioned to him that he planned to marry Hafsah (ra). That was the reason he had remained silent, as it would not have been proper to betray his confidence.

Hafiz Ibn Hajar (r) commenting on this hadith says: “the story of Abu Bakr (RA) tells us that once an information is available in the public domain, it is no longer a secret. Hence the burden of safekeeping the information is removed from the person.”

Using gagging clauses to hide wrongdoings and oppressions

Last year the UK Government announced that plans were underway to introduce new legislation to prevent the misuse of confidential clauses in workplaces, particularly in the context of sexual abuse, racial discrimination, and assault claims. The author’s view is that this sort of legislation is both long overdue and needed. It is also in line with the ethos of Shariah principles.

Until the relevant legislation is enacted, Muslim bosses and shareholders must strive to ensure that, confidentiality clauses draw a distinction between concealing oppressions on the one hand and securing trade secrets on the other.

Under English law, there is no general concept, or duty of confidentiality. If a confidential clause is negotiated between two parties, then the court will enforce such a clause based on the contractual terms agreed between the parties. Hence, Muslim shareholders and trustees can, and perhaps should use their leverage to exclude certain types of wrongdoings from the terms of any  confidentiality agreement, such as: any attempts to unfairly and oppressively gag sexual assault, bullying and discrimination claims.

However, even if no such exclusion was agreed, if a wrong was committed, Shariah does not sanction the employee who breaks the agreement in order to protect him or herself and/or others, as Allah says: “Allah does not like the public mention of evil except by one who has been wronged. And ever is Allah Hearing and Knowing.” [Nisa:148]

Some corporates will try to resolve issues such as sexual assault or bullying internally. In this case, the victim will be offered a hefty amount of money as compensation, in exchange for remaining silent on the wrongdoing committed against her.

From a Shariah jurisprudence perspective this sort of agreement might be acceptable as the most important factor is for the victim to obtain justice. If he or she feels that justice has been served by being compensated, then this will be sufficient.

However, morally and from a wider societal perspective, it can have disastrous ramifications if these sorts of wrongs continue to be repeated safe in the knowledge that the wrong could be “bought off”.  Compensation might be deemed to be justice from the perspective of the victim, but Shariah law could have a broader outlook, aimed at protecting future potential victims. Justice in these circumstances is not merely about compensating victims, but it is also about creating an environment where oppression and further wrongdoings are prevented. Thus, by applying certain Islamic jurisprudence principles, the gagging clause could be deemed to be impermissible and incompatible with Shariah law.

Nevertheless, for the Muslim employee, it is also necessary that they draw a distinction between the sort of action they can or cannot take. If someone is committing a wrong, would there be a need to go public to denounce him and ruin the reputation and image of the company? Our reaction must be proportionate to the harm that has been committed, as otherwise, if the reaction is blown out of proportion, one may have to suffer the consequences in front of Allah.

In conclusion, non-disclosure clauses are, in principle, Shariah compatible within Islamic jurisprudence. There are benefits to having such a clause for protecting business secrets, business entities and their workers. However, the reality is that such clauses and/or agreements have been misused multiple times by some employers for commercial interest reasons. This, from a shariah and potentially UK law perspective (in the future), could be problematic. Until the Government provides a viable solution to prevent its misuse, Muslim businesses, organisations and institutions, must ensure that internally, they have the necessary resources and procedures to safeguard and prevent any wrongdoings and abuse from being perpetrated and/or going unreported.

(Mufti) Billal Omarjee