There has been a great deal of focus in the media following some high profile cases which have involved employees being paid off and believing that they have been effectively gagged from going public with some serious workplace misconduct. The cases involving Harvey Weinstein and Phillip Green in particular have led to a sense of outrage that these seemingly rich and powerful men can pay people off and continue behaving in the most abhorrent way.
The frequent and interchangeable use of the terms Non-Disclosure Agreements (“NDA’s”) and confidentiality agreements by the media has caused some confusion as to what these terms mean. NDA’s as standalone agreements are rare in the context of employment disputes and are more frequently used in the commercial context by businesses seeking to legitimately protect commercially confidential information from being shared inappropriately.
Settlement Agreements are more commonly used in the employment context to settle workplace claims and it is very common for Settlement Agreements to include confidentiality and non-derogatory (an agreement to not criticise the employer or staff) clauses. A Settlement Agreement is not the same as a NDA but the confidentiality clause within the Settlement Agreement can have a similar effect.
It is important to remember that NDAs or a Settlement Agreement should not prevent anyone from legally whistleblowing/making a protected disclosure or a complaint to a regulator or a law enforcement agency. Since 1 October 2025, NDAs cannot be used to prevent the reporting of crimes or suspected crimes to various people or entities. It is common for these rights to be expressly set out in a Settlement Agreement.
To qualify as a whistle blower an individual must be able to demonstrate that they reasonably believe that the information they are disclosing shows at least one of six categories of wrongdoing: –
- the commission of a criminal offence,
- breach of a legal obligation,
- miscarriage of justice,
- danger to health and safety,
- damage to the environment,
- a deliberate attempt to conceal any of these wrongdoings.
From 6 April 2026 any disclosure about sexual harassment will expressly fall within the above.
If an individual can satisfy the whistle-blower status (by showing at least one of the 6 categories above) he or she can only make disclosures to the following categories of people:
- the employer,
- the person responsible for the failure or wrongdoing,
- legal advisors
- government ministers,
- a person prescribed by an order made by the Secretary of State – this includes the HMRC, NHS England, the FCO or Ofcom,
- a person who is not covered by this list provided certain conditions are met – this could include MP’s, the police and sometimes the media. However, to qualify for protection under the whistleblowing regulations the individual must make the disclosure in accordance with a number of conditions.
The disclosure also needs to be in the public interest.
The Law Society and the Solicitors Regulatory Authority have both raised concerns in respect of NDA’s and confidentiality clauses being used unfairly and in August 2024 the SRA issued a warning notice to certain people (primarily solicitors) regarding the use of NDAs.
At this stage the use of confidentiality agreements are not prohibited but they should be used in an appropriate way, the way of which will be fact dependent.
The government have indicated that in the future that under the Employment Rights Act 2025 a NDA which aims to prevent a worker from discussing or raising allegations of workplace discrimination or harassment (including sexual harassment) will be void. However, it is unclear at this stage how these will apply in practice particularly given that at the moment most settlement agreements are usually drafted to make it clear that the parties are not prevented from making a protected disclosure/blow the whistle. It is also unclear whether it will have an impact on an employer’s willingness to settle potential claims – confidentiality and the protection of reputational damage is often a valuable factor that employers take into consideration when deciding to resolve potential claims.
At this point, an employer can require confidentiality but an employee should not be wholly ‘silenced’.
If you require advice on a settlement agreement please fill out our contact form, email on info@justemployment.com or call 01483 303636 to see how we can help you.
*This article has been updated and amended since it was first published*
