How NDAs Impact Discrimination and Whistleblowing Claims

Non-disclosure agreements (NDAs) can be particularly complicated when they appear during a workplace dispute. This is especially true if you have raised concerns about discrimination, harassment, victimisation, or wrongdoing in the workplace.

Many employees worry that signing an NDA means they are being silenced. This is understandable, as confidentiality clauses are often written in formal language and can be difficult to interpret without legal advice. You may be unsure what you can say, who you can speak to, and whether signing affects your ability to bring or continue a claim.

At Nationwide Employment Lawyers, we advise employees on discrimination claims, whistleblowing concerns, and complex workplace issues. Understanding how NDAs can affect discrimination and whistleblowing claims, what they can and cannot usually restrict, and why the wording should be checked carefully before you sign is undeniably important. 

NDAs Often Appear Alongside Settlement Discussions

An NDA is not always presented as a document to sign when you start a new job or begin working on a project. In employment disputes, they are often included within a settlement agreement, bonus agreement, grievance process, or exit package.

This is common where an employer wants to keep certain information private. For example, an NDA may be used to keep settlement terms confidential, such as the sum of money agreed upon or the circumstances leading to the settlement. In this context, confidentiality clauses can have a legitimate purpose.

The concern arises when the wording appears to go further than protecting business interests. If an NDA makes you feel that you cannot report wrongdoing, raise concerns, speak to a regulator, get legal advice, or discuss serious workplace misconduct, it needs very careful review. This is particularly important if the NDA is issued after you have raised a complaint or made a protected disclosure. The timing may be relevant to the wider employment dispute.

An NDA Should Not Stop Lawful Whistleblowing

One of the most important points to understand is that an NDA should not be used to prevent lawful whistleblowing. Blowing the whistle is not the same as making a general complaint at work. In broad terms, it involves disclosing information about certain types of wrongdoing. This may include criminal offences, breach of legal obligations, danger to health and safety, environmental damage, miscarriages of justice, or the deliberate concealment of these issues.

In regulated industries, such as finance, healthcare and technology, whistleblowing concerns can be incredibly serious. They may involve compliance failures, safeguarding issues, data protection concerns, misleading reporting, or regulatory breaches. If you are considering making a protected disclosure, confidentiality wording should be approached carefully. An employer should not use an NDA to stop you from disclosing information that is protected by law. However, that does not mean you can share confidential information freely.

How the disclosure is made is incredibly important. For example, speaking to a prescribed regulator is very different from sharing information publicly. Before disclosing sensitive information, it is beneficial to get legal advice on the safest way to raise the concern.

Discrimination and Harassment Cases Need Careful Consideration 

NDAs have been under increasing scrutiny when they are used in discrimination and harassment cases. The concern is that employees feel pressured to stay silent about unlawful treatment, particularly where there is a power imbalance. This can be particularly relevant in claims involving sex discrimination, race discrimination, and disability discrimination.

For example, an employee may raise concerns about discriminatory treatment, only to be offered a settlement agreement with a strict NDA. The agreement may require them not to discuss the complaint, the settlement, or their departure. Some confidentiality wording may be reasonable. However, the clause should not be so broad that it wrongly suggests you cannot speak to a legal adviser or make a claim to the employment tribunal.

The practical issue is that many employees do not know where the line is. The uncertainty around NDAs can leave them feeling unable to speak up at all, even when the law may still permit certain disclosures of information.

Why Senior Employees Should Take Extra Care

For senior employees, an NDA is often only one part of a much wider agreement. The document may also deal with notice pay, bonus entitlement, share options, commission, long-term incentives, restrictive covenants, references and agreed announcements. This makes the stakes higher. Signing too quickly may not only limit what you can say, but also affect your financial position, your next role, and how your departure is presented to others.

Senior employees may also have professional or regulatory responsibilities. A finance, healthcare or technology executive may need to understand how confidentiality wording interacts with reporting duties, regulatory obligations or future employment checks. Before signing, it is worth asking questions about how the NDA affects you in practice. 

NDAs Can Influence the Strategy of a Claim

An NDA does not automatically prevent a discrimination or whistleblowing claim. However, it can affect how the matter is handled. If you are still employed, confidentiality obligations may influence how you collect evidence, who you speak to, and how concerns are raised. If you are negotiating an exit, the wording may affect what is agreed and what can be said afterwards.

This is one reason why timing is so important. Getting professional advice before signing gives you more options. It may be possible to negotiate clearer wording. Even if you have already signed, speaking to an employment law specialist can be beneficial. Although at this stage the focus is often on interpreting the wording and understanding what the agreement allows.

This is particularly important where an employment tribunal claim may have significant value. Discrimination claims can involve injury to feelings and loss of earnings, and whistleblowing dismissal claims have no statutory cap on compensation. Before accepting an offer, you should understand the potential value and risk of the claims you are giving up.

Be Cautious if the NDA Follows a Change in Treatment

The timing of an NDA can be important. If you are offered a settlement agreement after raising discrimination concerns or whistleblowing, it is worth looking carefully at what happened before the offer was made. For example, were you excluded from meetings, placed under performance review, denied bonus payments, or encouraged to leave? Was the settlement presented as a way to ‘draw a line under things’ without properly addressing the issue?

None of this automatically means the employer has acted unlawfully. Settlement agreements are a normal way of resolving employment disputes. However, where an NDA follows possible retaliation or victimisation, the timeline should be reviewed before any agreement is signed.

Keeping a clear record can help, including any key dates, meetings, concerns raised, responses received, changes in treatment, and any documents you are given. This can make it easier to assess whether the proposed NDA is separate from the concerns or connected to them.

What to Check Before Signing

Before signing an NDA connected to discrimination or whistleblowing, the wording should be reviewed carefully. The aim is to understand exactly what you are agreeing to. In particular, check the following:

• The scope of the confidentiality clause
• Any exceptions for legal advice or protected disclosures
• Repayment or clawback provisions
• Reference and announcement wording
• Bonus, commission, shares or deferred compensation
• Restrictive covenants
• The claims being waived

The agreement should be clear enough for you to understand how it will work in real life. If you are unsure what you can say, who you can speak to, or what happens if you raise concerns in the future, those points should be clarified before signing.

Speak to Nationwide Employment Lawyers

NDAs can have a legitimate role in some employment settlements, but they should not be used to make employees feel unable to raise concerns about discrimination, harassment, victimisation, or whistleblowing. The wording is important, especially where the dispute involves serious allegations, a senior role, regulated responsibilities or a complex exit.

At Nationwide Employment Lawyers, we can provide tailored advice surrounding employment law claims and NDAs. Our experienced team can answer any questions you may have about the wording of a confidentiality clause, help you understand what the agreement means, what it can and cannot restrict, and how to protect your position before you make a decision.

If you have been asked to sign an NDA, contact us today.