Confidentiality clauses, also known as non-disclosure agreements or NDAs, are provisions which seek to prohibit the disclosure of information. They serve a useful and legitimate purpose in the employment context, as part of both employment contracts, e.g. to protect trade secrets and other confidential information, and settlement agreements, e.g. to allow both sides of an employment dispute to move on with a clean break. However, a number of cases have come to light where employers have used confidentiality clauses to prevent victims of workplace harassment or discrimination from speaking out. The government is therefore consulting on new measures to prevent the misuse of confidentiality clauses in cases of workplace harassment or discrimination.

There are already certain legal limitations in place on the extent of confidentiality clauses. A confidentiality clause cannot remove someone’s statutory employment rights as set out in the Employment Rights Act 1996 or override anti-discrimination law under the Equality Act 2010 (although a worker can agree to waive their right to bring an employment tribunal claim in a legally valid settlement agreement). In addition, a confidentiality clause can never remove a worker’s right to blow the whistle on specific wrongdoing which amounts to a “protected disclosure” and any provision which seeks to do this is rendered void.

The government’s proposals, as set out in the consultation document, include:

• legislating to ensure that no confidentiality clause can prevent an individual making any kind of disclosure to the police (and it seeks views on whether disclosures to any other people or organisations should be similarly protected)


• requiring that confidentiality clauses in settlement agreements, and all written statements of employment particulars, clearly highlight the disclosures that confidentiality clauses do not prohibit, so workers know the rights they have when they have signed one


• extending the requirement for a worker to receive independent legal advice on a settlement agreement to include specific advice on the nature and limitations of any confidentiality provisions in the agreement


• making void in its entirety any confidentiality clause in a settlement agreement that does not meet any new wording requirements (in the case of employment contracts, the enforcement mechanism would be through the existing mechanism relating to the requirement for employees to be given a written statement of employment particulars).

There is, however, no proposal to issue standard wording for employers to use in employment contracts or settlement agreements.

The consultation closes on 29 April 2019.