As the Employment Rights Bill passes through Parliament in its final stages, one note-worthy amendment is clause 22A and the proposed changes to workplace confidentiality.
What’s changing?
A new provision addressing contractual duties of confidentiality relating to harassment and disclosure.
Once clause 22A becomes law, any confidentiality clause that tries to silence current or former workers about harassment or discrimination will be void. This isn’t just about employment contracts – it covers settlement agreements, policies, and any other arrangement between employer and worker.
The scope is broad, but not retrospective. It protects current and former employees, and regulations may extend this to contractors, trainees, and those on work experience. Whether the discrimination involves the employer directly or another worker, and whether the complainant is the victim or a witness, the protection applies.
When will clause 22A be implemented?
There has been no indication in the Government’s recently published roadmap for implementing the Employment Rights Bill on when clause 22A will come into force.
The practical impact of clause 22A
For employers, this will require immediate action:
Contract audits are essential. Standard confidentiality clauses, template settlement agreements, and workplace policies will need urgent review. Any provision attempting to prevent equality-related disclosures will be unenforceable.
Enforcement tactics become risky. Workers cannot be threatened with breach of contract for speaking to regulators, police, media, or colleagues about discrimination.
Settlement strategy requires rethinking. Employers may become less willing to settle harassment and discrimination claims if confidentiality cannot be guaranteed, even where a worker would like to settle their harassment or discrimination claim and would prefer not to proceed to litigation. This could lead to more cases proceeding to claims being issued in the employment tribunal.
An odd omission
Curiously, while the ban covers most types of discrimination, including harassment, it doesn’t extend to reasonable adjustment failures. These claims can still be subject to NDAs – a distinction that seems arbitrary and may create confusion.
What should I be doing as an employer?
Start with a comprehensive review of all contracts, agreements, and policies containing confidentiality provisions. Identify clauses that attempt to prevent equality-related disclosures and plan their removal or revision.
Consider your settlement approach. Without the comfort of confidentiality, you may need to be more proactive in addressing workplace issues before they escalate to formal complaints.
Train managers and HR teams on the new restrictions. The temptation to use existing confidentiality clauses could create significant legal exposure.
Comment
This change reflects a broader shift toward transparency in workplace equality matters. While it may complicate settlement negotiations, it should encourage employers to create genuinely safe, inclusive environments rather than relying on confidentiality to manage problems.
The Employment Rights Bill continues to evolve, and staying informed about these changes is crucial for protecting your organisation and supporting your workforce effectively.
How can we help?
Rachel Hatton is a Partner in our expert Employment Law team.
Rachel has a strong reputation in all aspects of employment law, both advising employers generally on how to deal with employees in the workplace (covering disciplinary and grievance matters, redundancy, TUPE etc) together with extensive Employment Tribunal litigation experience covering complex discrimination, whistleblowing and dismissal claims and also has particular experience in developing HR support services for businesses.
At Nelsons, our employment law team in Derby, Leicester, or Nottingham can provide tailored advice on how the WEC report might affect your business or professional practice. For more information or to discuss your specific circumstances, please call 0800 024 1976 or contact us via our online enquiry form.
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