Legal update – Confidentiality clauses


The Government has issued a consultation document seeking views on new measures to prevent the misuse of non-disclosure agreements in situations involving workplace harassment or discrimination. Generally, confidentiality clauses are used in two ways in the employment context, either as part of employment contracts to protect e.g. trade secrets, or as part of a settlement agreement to allow both sides to move on with a clean break. There are some limits on their use. Confidentiality clauses are ineffective if they purport to prevent someone taking a case to employment tribunal (unless within a COT3 brokered by ACAS or a settlement agreement) or making a protected disclosure.

The Government is now consulting on further measures which include: –

  • Legislation to ban confidentiality clauses which prevent a victim reporting or discussing potential criminal acts to or with the police;
  • Ensuring any confidentiality clauses in employment contracts (as contrasted with settlement agreements) are included in the written statement of particulars of employment issued at the start of the employment relationship; and
  • Requiring all confidentiality clauses to highlight the disclosures which are not prohibited by the clause and making any confidentiality clauses which do not comply with this void in their entirety.

The consultation document was issued on 4 March 2019 and responses must be lodged by 29 April 2019. To access the consultation document, click here.



The Claimant was on maternity leave and during that period she was one of a number of staff who were placed at risk of redundancy.  She was sent a number of emails to her work email address which was not accessible to her during her maternity leave with details of redeployment opportunities.  Ms Jackson did not find out about these opportunities for several days and although this caused no substantial harm, it was a legitimate concern and her claim for unfavourable treatment under the Equality Act was successful with the Tribunal upholding her claim as she didn’t get the email “because” she was on maternity leave.

The EAT has now heard the case and remitted the case to the Tribunal for further findings.  The EAT held that although the unfavourable treatment would not have happened “but for” taking the maternity leave, the Tribunal should have given consideration as to the reason why the email was sent to the Claimant’s work email address. As it had declined to make any findings on this point, the matter was referred back to the Tribunal for further consideration.