Clause 22A: What employers need to know about the NDA ban on harassment and discrimination claims

A significant legal change is on the horizon for employers as Clause 22A is introduced into the Employment Rights Bill. This new provision will render void any confidentiality provision – including those found in settlement agreements – that attempts to prevent workers from speaking out about harassment or discrimination, as defined under the Equality Act 2010.

The Government frames this amendment as a direct response to systemic misuse of NDAs and as part of a broader goal to create safer, more transparent workplaces.

For employers, this will mark a step-change in how sensitive disputes must be handled and resolved with their workers.

What’s changing?

Clause 22A renders void and unenforceable any contractual term that aims to prevent workers from disclosing or alleging harassment or discrimination as defined by the Equality Act 2010.

This will mean:

• Employees and ex-employees cannot be gagged from speaking about workplace harassment or discrimination
• The ban will extend to disclosures about how the employer responded to such complaints
• All types of contracts will be covered, not just standard employment contracts
• The protection will apply to both current and former workers – and may be extended to include contractors, interns, trainees, and volunteers
• The protections will also apply regardless of who the alleged perpetrator is – whether it’s the employer or another employee – and whether the complainant is the victim or a witness.

Important exceptions

In a notable exception, the ban does not extend to NDAs involving failures to make reasonable adjustments for disabled employees under the Equality Act 2010. These claims may still be subject to NDAs; however, employers may wish to consider whether enforcing confidentiality in these cases aligns with broader legal and ethical obligations.

Confidentiality clauses protecting commercial information, intellectual property, or trade secrets are not affected. Employers can still include standard confidentiality obligations related to business operations, provided they don’t attempt to silence equality-related disclosures.

Key implications for employers

There are three key implications employers should be considering immediately:

1. Review all existing templates and practices

Employment contracts, confidentiality policies, and settlement agreement templates should be audited and revised. Any language that attempts to restrict disclosures about harassment or discrimination will be unenforceable and could expose the business to legal risks.

2. Risk of reputational damage

Employers cannot legally prevent employees from speaking to regulators, the media, police, or colleagues about these sorts of allegations. Attempting to rely on outdated NDA language may be viewed as coercive, and could itself amount to victimisation under the Equality Act 2010.

3. Limits on confidential settlements

Without the option to insist on confidentiality, employers may find it more difficult to settle harassment or discrimination-related claims. Employers will need to reconsider their litigation strategy and factor in the reputational aspects of public disclosure even after settlement of such claims.

Preparing your organisation

To mitigate risk, employers should:

• Conduct a legal audit of contracts, policies, settlement agreements, and relevant templates
• Ensure HR teams are briefed on the planned changes and avoid any blanket use of NDAs in harassment and discrimination-related cases
• Train managers on how to respond to disclosures to avoid retaliatory behaviours that could give rise to separate claims
• Consider reputational planning around high-profile or sensitive claims where confidentiality is no longer certain.

Conclusion

Clause 22A is intended to end the culture of silence around workplace harassment and discrimination. For workers, the message is clear: you can speak out, and you are protected when you do.

Employers must act quickly to bring their practices in line with the new legal landscape or risk serious legal and reputational consequences. For more information or guidance, please speak to our expert Employment & HR team.