Non-disclosure agreements, or gagging clauses, have come under real scrutiny since the #MeToo movement in 2017, the impact of which extends to settlement agreements between workers and employers. Although these clauses can still be used legitimately by employers to protect confidential information and circumstances leading to the termination of employment, the #MeToo campaign highlighted many situations in which these clauses had been used inappropriately as a way of deterring victims of sexual harassment from disclosing details of the harassment to the authorities. In November 2018 the Women and Equalities Committee commenced an inquiry leading to its “Sexual Harassment in the Workplace” report and a government consultation. The result of this has affected the validity of a number of these clauses when relating to sexual harassment, and also placed restrictions on solicitors advising on them. The laws governing what is and is not valid are being extended this year.
Where are we now?
At the moment, in Scotland the law ensures that following clauses are “void” i.e. are treated as if they are not there, and cannot be enforced:
- Any clauses which seek to prevent an individual from making a protected disclosure;
- Any clauses that “constitutes, promotes or provides for” discriminatory treatment.
Although most employers will err on the side of caution, there can often be debate on what is a “protected disclosure” in the circumstances, and what constitutes discriminatory treatment. The “Sexual Harassment in the Workplace” report also called on regulators to take a more active role in preventing sexual harassment in the workplace. This has led to the Law Society of Scotland issuing guidance to solicitors in Scotland on 6 November 2025. As well as these clauses being void in these circumstances, the guidance goes further and places responsibility on the adviser not to include or propose clauses which they know are not enforceable. The guidance goes so far as to say that a solicitor will be required to withdraw from acting if a client insists on these clauses being included. It is important that clients are aware of the solicitors’ obligations in these circumstances.
Further this guidance, companies will also find helpful non-regulatory guidance issued by the Equality and Human Right Commission explaining what is, and is not, likely to be enforceable and appropriate use.
What is happening this year?
The Employment Rights Act will place further restrictions on the use of confidentiality clauses this year. Firstly, as of 6 April 2026, reporting workplace sexual harassment will explicitly amount to a “qualifying disclosure” under whistleblowing legislation. This will provide greater clarity when sexual harassment is involved, and potentially extend the types of issues that will be void on account that they seek to prevent an individual from making a protected disclosure.
The Employment Rights Act also introduces legislation that will make void any provision in an agreement between an employer and worker that prevents the worker making allegations or disclosures relating to "relevant harassment or discrimination". This will again remove any debate as to what amounts to a “protected disclosure” and it will not be limited to just “sexual harassment” but will cover all forms of discrimination or harassment related to a protected characteristic e.g, disability, race, age etc. It is however not yet clear when these provisions will come into effect.
General comment
Traditionally it has been an expectation from employers that any settlement agreement includes confidentiality provisions, however moving forward these restrictions will have limitations and should only be used if, after consideration, there is a genuine requirement. In an effort to protect business reputations and employee relation generally, some employers have actually taken the view that being transparent and communicating clearly on matters is more likely to be beneficial to the business. This is however a complex matter, and if you need any assistance at all then please contact a member of the Employment Law Team here at Thorntons.
