Can employers rely on blanket non-disclosure clauses to prevent an employee disclosing serious wrongdoings?
Under reforms to be introduced by the Employment Rights Bill (ERB), any agreement, including settlement agreements, between an employer and a worker which would prevent a worker from making allegations or disclosures about discrimination or harassment (as defined by the Equality Act 2010 including discrimination or harassment based on any protected characteristic ) and or preventing disclosures about how the employer responded to such allegations, will be void thus unenforceable.
The restrictions would apply regardless of whether the conduct was carried out by the employer or another employee or directed at the complainant or witnessed by them as a colleague.
The proposed changes would even allow employees to share information even if it does not meet the whistleblowing threshold ie removes the requirement for disclosures to qualify as “protected disclosures” under whistleblowing law. Currently, under section 43 J of the Employment Rights Act 1996 any agreement, that attempts to prevent a worker from making a “protected disclosure” (whistleblowing) is invalid and thus unenforceable.
The ERB does make a reference to “excepted agreements”, falling outside the restrictions to be introduced via secondary legislation but it is currently unclear what these exceptions will include.
The reforms will make fundamental changes as to how NDAs would apply to workplace settlements, thus employers should look to remove or revise any clauses that attempt to prevent employees from reporting or discussing discrimination, harassment, or criminal conduct and include wording that reflects the specific purposes and limitations of the legislation.
Also, readers are reminded that as from 1 October 2025 under section 17 of the Victims and Prisoners Act 2024, any wording in an NDA or confidentiality clause that attempts to prevent a victim of crime from disclosing certain information would be legally unenforceable but only to the extent it conflicts with the new rules. The provisions applying to England and Wales.
The definition of a victim of crime is set out in sections 1(1) and (2) of the Victims and Prisoners Act 2024 and would apply to someone who has suffered harm as a direct result of being subjected to conduct which constitutes a criminal offence in England and Wales, or any of the circumstances outlined in section 1(2) of the Victims and Prisoners Act 2024.
The significance of the above is that all criminal conduct is covered thus workplace misconduct that falls within the bounds of criminality would fall with section 17 protection and it would not matter whether anyone has been charged with or convicted of a criminal offence, nor is there any requirement that the criminal conduct be reported to the police.
If you require any further assistance, please do not hesitate to contact our HR/Legal advice line team at 01455 852 028.
