This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive explanation of how confidentiality agreements and discrimination claims interact in employment law in England and Wales, including limits on non‑disclosure clauses, legal reforms affecting NDAs, statutory rights, tribunal evidence rules, and practical guidance for workers and employers.
Confidentiality and discrimination claims interact in important ways in employment law in England and Wales. Confidentiality agreements - often referred to as non‑disclosure agreements (NDAs) - are contracts used to protect sensitive information. Discrimination law, governed chiefly by the Equality Act 2010, protects individuals from unfair treatment because of protected characteristics such as age, sex, race, disability, religion or belief, sexual orientation, and others. When confidentiality clauses intersect with allegations of discrimination or harassment, both legal rights and practical considerations arise for employees, workers and employers. Recent and forthcoming legal reforms further shape how confidentiality operates in discrimination claims. This article explains the legal framework, the role of confidentiality in discrimination contexts, risks and protections, and practical considerations for parties considering claims or agreements.
What Is a Confidentiality Agreement?
A confidentiality agreement is a contractual term that limits what information a party may disclose. In employment, these can appear:
- in employment contracts to protect business‑sensitive information, such as trade secrets, customer lists or intellectual property; or
- in settlement agreements (formerly compromise agreements) where an employer and worker agree terms for ending a dispute or relationship, including financial terms.
Confidentiality clauses are not inherently unlawful, but they must be appropriately drafted and cannot be used to prevent lawful reporting or discussion of discriminatory treatment. Guidance from the Equality and Human Rights Commission (EHRC) emphasises good practice for confidentiality clauses in relation to discrimination, harassment or victimisation under the Equality Act 2010. These clauses must clearly specify what is confidential and must not be construed to bar legitimate disclosures about discriminatory acts. Employers are also advised not to place workers under duress to sign such agreements.
Confidentiality Limits in Discrimination Contexts
Legal Restrictions on GNUADs and Confidentiality Clauses
Confidentiality clauses cannot be used to stop workers from making protected disclosures (often referred to as whistleblowing), reporting crimes to law enforcement, or seeking advice or support if they are victims of crime. Employers cannot contract out of these statutory rights.
Moreover, a significant legal reform is underway. An amendment to the Employment Rights Bill - known as Clause 22A - has been introduced in Parliament. Once enacted, this provision will render void any confidentiality term in an employment contract, settlement agreement or related document to the extent that it attempts to prevent a worker from making allegations or disclosures about workplace harassment or discrimination under the Equality Act 2010. This applies not only to complaints about discriminatory acts but also to disclosures about how those complaints were handled. Employers will not be able to rely on NDAs or broad non‑disparagement clauses to silence complainants or witnesses in discrimination and harassment cases.
Ongoing Statutory Protections
Even prior to this legislative reform, statutory protections already limit confidentiality clauses:
- Current law forbids using confidentiality terms to block a worker from reporting wrongdoing, including criminal offences, to the police or regulators, or from making a protected disclosure.
- If confidentiality clauses attempt to bar such disclosures, they can be unenforceable and may be subject to legal challenge.
Drafting and Enforcement Considerations
Employers should carefully draft confidentiality terms to avoid over‑broad provisions that could be deemed unlawful. The EHRC's guidance recommends:
- making clear what specific information is confidential;
- excluding from confidentiality any act of discrimination, harassment or victimisation;
- allowing communication with specified parties (such as police, regulators, solicitors and counsellors); and
- avoiding pressure or duress when obtaining a worker's agreement.
Courts and tribunals are not obliged to follow EHRC guidance but may regard it as evidence of good or bad practice in interpreting confidentiality terms.
Settlement Agreements and Evidence
Settlement agreements often include confidentiality clauses. Traditionally, settlement discussions can be protected by the ‘without prejudice' principle or by section 111A of the Employment Rights Act 1996, meaning that the content of those discussions is typically not admissible in an employment tribunal or court. However, if there is unambiguous impropriety (such as discrimination, blackmail or intimidation) during those discussions, tribunals may allow such evidence.
Under the new legislative changes, any term that purports to gag workers from speaking about harassment or discrimination will be void, and parties may freely discuss the underlying facts. Confidentiality relating solely to commercial or legitimately sensitive information may remain enforceable, but restrictions on disclosures that relate to discrimination claims will not.
Practical Risks and Legal Considerations
For Employees and Workers
Employees and workers should be aware that:
- Signing a confidentiality clause does not override statutory rights to report discrimination, harassment or criminal conduct.
- If forced into an over‑broad confidentiality clause without proper explanation or time to consider it, an agreement may be unenforceable.
- They should seek independent legal advice before entering settlement agreements, especially where discrimination has been alleged.
- Reforms may mean that clauses seeking to silence disclosure in discrimination cases will soon be automatically void without challenge.
For Employers
Employers must take care not to misuse confidentiality agreements:
- Any clause that effectively prevents workers from speaking out about discriminatory or harassing conduct will likely be unenforceable and potentially illegal under forthcoming law.
- Employers should update standard contracts and settlement templates in anticipation of new legal requirements.
- Policies should balance protecting genuinely sensitive business information with respecting statutory rights.
- Misuse of confidentiality provisions can damage trust, harm reputation and increase the likelihood of litigation.
Examples and Practical Context
Example 1: A worker raises a discrimination complaint alleging racial harassment. The employer offers a settlement with a broad confidentiality clause that bars the worker from discussing the matter publicly. Under forthcoming reforms, such a term would be void if it prevents the worker from disclosing the harassment or how it was handled.
Example 2: An employer includes a confidentiality clause in an employment contract to protect trade secrets. This clause is lawful and enforceable so long as it does not prevent the worker from reporting discrimination, making whistleblower disclosures, or engaging solicitors or regulators about such claims.
Common Questions
Can confidentiality clauses prevent discrimination claims to an employment tribunal?
No. Statutory rights to make a claim to an employment tribunal or to report discriminatory conduct to relevant authorities cannot be overridden by confidentiality agreements.
Are all NDAs unlawful?
No. NDAs can still be used legitimately to protect commercially sensitive information. The key issue is whether the clause seeks to silence individuals about claims of discrimination or harassment.
What should a worker do if asked to sign a confidentiality clause?
Workers should seek independent legal advice to ensure they understand the terms and that their rights to report discrimination or harassment are not restricted.
Final Thoughts
Confidentiality agreements and clauses have a legitimate place in employment law, protecting commercial information and facilitating settlement of disputes. However, when confidentiality intersects with discrimination claims, statutory rights and legal reforms place clear limits on what can be enforced. The law in England and Wales protects the right of individuals to raise allegations and discuss discriminatory conduct, and forthcoming changes will further restrict the use of NDAs and confidentiality terms that seek to silence victims or witnesses of discrimination and harassment. Employers and workers alike should understand these boundaries, draft clear and compliant agreements, and seek appropriate legal advice when navigating sensitive claims.
