The beginning of the end for confidentiality clauses?

Over the last year, public sector employers’ use of confidentiality clauses in settlement agreements has come under increased scrutiny. What was once considered standard – if not essential – in settlement agreements is now increasingly being reconsidered; particularly in the public sector, where employers are more frequently proceeding without confidentiality clauses due to regulatory constraints imposed by the Government.

Outside the public sector, employers can still include confidentiality clauses in settlement agreements, although this position may soon evolve. In April 2026, the Government launched a consultation on the ‘misuse of non-disclosure agreements (NDAs)’, seeking views on restricting their use in cases involving workplace harassment and discrimination. The consultation also explores conditions for valid NDAs in such cases, indicating that an outright ban is unlikely. Stakeholders have until 8 July 2026 to submit their responses.

In light of developments in the public sector, employers in other sectors should anticipate increased scrutiny of confidentiality clauses – particularly where allegations of harassment or discrimination are involved – and begin reviewing their current practices accordingly.

These developments may have broader implications beyond employment law. For example, in the education sector, where issues of harassment, discrimination, and safeguarding are central to students’ ability to access and participate fully, increased scrutiny of NDAs may support wider efforts to promote transparency and accountability. A move away from confidentiality clauses in such contexts could contribute to creating safer and more inclusive environments within educational institutions.

You can read about the consultation, and find out how to respond on the UK Gov website.