What these clauses usually cover
- The terms of the agreement, especially the amount paid.
- The existence of the agreement and the negotiations.
- The circumstances of your departure, sometimes including the allegations you made.
- Business confidential information, which you already owe a duty to protect.
The first, second and fourth are routine. The third is where the law has been tightening.
What a clause can never stop you doing
- Whistleblowing. Section 43J of the Employment Rights Act 1996 makes void any term that tries to prevent a protected disclosure. Since April 2026 a disclosure that sexual harassment has occurred, is occurring or is likely to occur expressly counts.
- Reporting a crime to the police, or co-operating with a criminal investigation.
- Speaking to a regulator such as the FCA, the SRA, the CQC or the Equality and Human Rights Commission.
- Giving evidence when required by a court or tribunal.
- Taking legal, tax or medical advice.
Under section 17 of the Victims and Prisoners Act 2024, in force from 1 October 2025, a confidentiality clause also cannot stop a victim of crime, or someone who reasonably believes they are one, telling the police, qualified lawyers, regulated professionals, victim support services, regulators and close family about the conduct in order to get support or advice.
A well-drafted agreement states these exceptions. Solicitors acting for employers are under a professional duty, set out in the SRA's warning notice, not to draft clauses that suggest otherwise.
The 2027 reform: harassment and discrimination
Section 24 of the Employment Rights Act 2025 will insert a new section 202A into the 1996 Act. When it is in force, any term in an agreement between an employer and a worker will be void so far as it stops the worker making an allegation of, or disclosing information about:
- harassment or discrimination that they or a colleague experienced; or
- how the employer responded to it.
There will be an exception for "excepted agreements" that meet conditions to be set in regulations. The government consulted in 2026 on those conditions, which are expected to include independent legal advice, written informed consent from the worker and a cooling-off period. The government has said the regime will come into force in 2027. No date has been fixed.
What this means now. Until section 202A is in force, a clause covering harassment or discrimination allegations is not automatically void, subject to the exceptions above. If you are signing in late 2026 and want to keep the freedom to speak about what happened, negotiate for that now. If you want confidentiality for your own privacy, you can still have it. Our NDA reforms explainer tracks the detail.
Exceptions to ask for
Whatever the clause covers, ask for it to allow disclosure to:
- your spouse, partner and immediate family;
- your legal, financial and tax advisers;
- your doctor, counsellor or therapist;
- HMRC, the DWP and any regulator;
- a prospective employer or recruiter, to the extent needed to explain why you left;
- your insurer, for example under an income protection policy;
- anyone, where the law requires.
Make it mutual
Confidentiality and non-derogatory clauses are often one-sided in the first draft. Ask that the employer also keeps the terms and circumstances confidential, and that it will take reasonable steps to stop named managers making negative comments about you. An employer cannot control every employee, but it can instruct those who know.
Payments for confidentiality
Some agreements allocate a small sum, often £100 to £500, as payment for the confidentiality and other new promises. That sum is taxed as earnings and does not use your £30,000 allowance. See tax on settlement agreements.
Frequently asked questions
Is a confidentiality clause the same as an NDA?
In this context, yes. "NDA" is the common name for a clause or agreement that restricts what you can say.
Can I tell my family about my settlement?
Most agreements allow you to tell your spouse or partner and immediate family, provided they keep it confidential too. If yours does not, ask for it to be added.
Can I tell a new employer why I left?
You can normally say you left by agreement and use the agreed reference. Many clauses also allow you to say what is necessary in a job application. Check the wording.
What happens if I breach a confidentiality clause?
The employer could sue for damages or seek an injunction, and some agreements require repayment. A clause that is void under the law cannot be enforced.
Sources
About this guide. This page is general information, not legal advice, and reflects the law and published government plans on the date shown above. Frederick George is a legal referral service, not a law firm. For advice on your own circumstances we will introduce you to an SRA-regulated solicitor.