Home / Say nothing – removing the gag on confidentiality
1st October 2025
James Howarth, Associate
Confidentiality clauses in settlement agreements have become a ubiquitous part of the standard settlement process. Often they are pitched at the outset as being needed to protect confidential business information. They can, however often go much further, cover irrelevant areas and prevent an employee from speaking about their exit, and the circumstances that led up to that exit.
Given this, confidentiality clauses have started to attract criticism, as they can stop employees from speaking out about harassment, discrimination, or even potentially criminal behaviour. The government have vowed to stop this practice, and through new legislation and guidance, the use of confidentiality clauses in settlement agreements will be changing.
From the 1st of October 2025, new rules mean that confidentiality clauses cannot be enforced if they try to prevent a victim from reporting crimes, speaking to the police, or relevant regulators.
Currently going through Parliament, the Employment Rights Bill will go a step further. It says that any term in a settlement agreement will be void if it stops a worker from making any allegation of harassment or discrimination – including being a witness to, and then reporting such conduct.
The clear message is that confidentiality must not be used to “gag” staff who have experienced, and/or witnessed unlawful treatment at work.
As solicitors, we are bound by rules from the SRA which are very clear: we must not draft or encourage agreements that are designed to cover up allegations of sexual harassment or other serious misconduct.
The SRA has published guidance reminding lawyers that confidentiality should never be used to silence victims or obstruct proper reporting.
Confidentiality clauses in settlement agreements are not disappearing; they remain a useful tool for protecting legitimate business interests. But the law is shifting firmly in favour of transparency and accountability.
For employers, the key is balance: protect what genuinely needs to remain confidential (like sensitive financial or commercial information), while making sure agreements don’t infringe on a worker’s right to speak out about wrongdoing.
Clauses that seek to silence workers about harassment, discrimination or criminal conduct will not be enforceable. Continuing to use them could expose employers to legal challenge and reputational risk and ultimately undermine what could otherwise be a legitimate confidentiality provision.
2. Understand the need for confidentiality.
Consider whether you need a confidentiality provision in the first place. If so, settlement agreements can still include confidentiality provisions to protect legitimate confidential information and/or specific terms in a settlement agreement, such as the financial terms of a deal, however they should explicitly state that nothing prevents disclosures to the police, regulators, and consideration should be given to separately stating that any allegations in relation to harassment and discrimination are expressly excluded.
Employees should never feel pressured into silence as a condition of settlement. Independent legal advice is already required as part of the settlement agreement process, however these reforms underline the importance of ensuring staff know their rights. Also, expect pushback from solicitors acting for an employee around confidentiality as they are under profession duties to do so.
Our Head of Department, Kevin McKenna spoke recently about these changes at a recent HR Breakfast.
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