Discrimination NDAs: Why Independent Advice Matters
Why an NDA Is Not a Gag on Discrimination
Non-disclosure agreements have become the standard wrapper for exits from British workplaces, and most of them are perfectly lawful. What has changed since 2018 is the scrutiny. The Women and Equalities Committee’s inquiry into sexual harassment, followed by the Solicitors Regulation Authority’s warning notice on the use of NDAs, made clear that a clause cannot be used to stop someone reporting a crime, whistleblowing to a prescribed regulator, or cooperating with an investigation.
That distinction matters enormously if discrimination is part of the story. A settlement agreement may buy silence about the sum paid and the circumstances of departure, but it cannot strip you of the right to bring a claim under the Equality Act 2010 unless the agreement meets the statutory conditions. Those conditions are strict: the agreement must be in writing, relate to the particular complaint, and you must have received advice from a relevant independent adviser — normally a solicitor with a practising certificate — who is insured and identified in the document.
Employment tribunals see a steady flow of cases where an employer has tried to push a wide confidentiality clause and a narrow settlement. If you are being asked to sign something within 48 hours of receiving it, that pressure is itself worth noting. ACAS conciliation gives you a protected window, and no genuine settlement needs to be rushed through on a Friday afternoon.
What Independent Advice on a Settlement Agreement Actually Involves
The adviser’s certificate at the back of the agreement is not a formality. A solicitor signing it is confirming they explained the effect of the terms, the rights you are giving up, and the practical consequences. In practice, a proper appointment covers three things: whether the compensation is fair, whether the wording protects you as well as the employer, and what you are still free to say afterwards.
Points worth negotiating before you sign
Confidentiality clauses are usually drafted widely and can be narrowed. Ask for carve-outs permitting disclosure to your immediate family, to a future employer where legally required, to HMRC, and to your GP or a therapist. Ask whether the employer will provide a reference and in what terms. Ask for the confidentiality obligation to be mutual, so the employer cannot brief colleagues while you are silenced.
Discrimination claims often involve medical evidence of stress or anxiety, and the tax treatment of the payment matters. Injury to feelings awards and compensation for a psychiatric injury are generally treated as outside the scope of tax, while notice pay and wages are taxable. A blunt gross figure described as “ex gratia” can leave you with an unexpected bill. Insist the agreement itemises the components.
The cost of that advice is normally covered by the employer, commonly between £350 and £750 plus VAT for a straightforward case. If the employer offers a contribution that will not cover a decent review, say so — most will increase it rather than risk the deal collapsing.
Where to Find Solicitors Who Handle Both Sides of This
Search results for NDA solicitors in London are dominated by City firms whose clients are the employers. There is nothing wrong with that, but it tells you whose interests they are structured to protect. If you are the employee, look for a firm that acts for claimants in the employment tribunal as well as drafting agreements, and check the solicitors’ profiles rather than the firm’s homepage.
The geography is less important than it used to be. Someone searching for sexual discrimination lawyers near me may find the best match three counties away, and a video consultation is standard practice now. What you should confirm is that the individual advising you holds a current practising certificate, that the firm carries professional indemnity insurance, and that they have actually read your agreement before the call. Some high-street practices offer a free 30-minute initial session, which is enough to flag whether an agreement is broadly reasonable or seriously one-sided.
Be cautious about anyone who promises a quick signature and a fast payout. Independent advice means independent judgement, and a solicitor who never advises against signing is not really advising at all.
If You Have Already Signed
The agreement is binding, but it is not always the end. A term that purports to prevent you from making a protected disclosure is void, whatever the contract says, and the same applies to clauses that obstruct a criminal investigation. If you signed under pressure, without genuinely independent advice, or on the basis of a misrepresentation about the payment, there may be grounds to challenge it — though the time limits under the Equality Act are unforgiving, generally three months less one day from the act complained of.
Keep every version of the agreement, all emails about the negotiation, and a dated note of any conversation where you were told to sign quickly. That contemporaneous record is worth more than memory when a tribunal or a regulator later asks what happened. The confidentiality clause may limit what you can publish, but it does not stop you seeking advice, and it does not stop you from speaking to a solicitor about whether the agreement was ever valid in the first place.