The UK government’s consultation on the use of non-disclosure agreements (NDAs) in cases of harassment and discrimination signals a likely shift in the resolution of workplace disputes. Employers should expect greater restrictions on confidentiality provisions and more procedural safeguards where NDAs are used.
The Employment Rights Act 2025 will render void any contractual term that seeks to prevent a worker from speaking out about harassment or discrimination, unless specific statutory conditions are met. This provision will come into force at some point in 2027, heralding a more limited and regulated role for NDAs in workplace misconduct cases.
This forms part of a broader trend towards restricting the use of NDAs in sensitive workplace situations. Recent reforms have already limited the use of NDAs in higher education and in relation to victims of crime, reflecting increased scrutiny of how confidentiality provisions operate in practice.
Rationale for reform
NDAs have long played a legitimate role in protecting confidential and sensitive business information and facilitating settlement. However, concerns have grown about inappropriate use of NDAs to prevent workers speaking out about harassment and discrimination. This risks perpetuating a culture of secrecy, which allows the inappropriate behaviour to persist.
The reforms plan to address these concerns by limiting the enforceability of NDAs in these contexts. Under the new framework, confidentiality provisions relating to discrimination or harassment will generally be unenforceable, unless the agreement qualifies as an “excepted agreement”. The aim of the reforms is to encourage greater transparency and ensure individuals can seek advice and support.
Key proposals
The government is consulting on the conditions NDAs must meet to fall within the “excepted agreement” exception and remain enforceable. The consultation proposes that an NDA will only be valid where certain conditions are satisfied:
- Independent advice: The worker must receive independent advice in writing before entering into an excepted agreement. This advice must cover the terms and effect of the NDA, as well as its legal limitations. The agreement must identify the adviser, who must have indemnity insurance. The consultation asks whether the definition of “independent adviser” should include Acas conciliators (who would not need indemnity insurance). The proposals do not require employers to bear the cost of obtaining this advice. In practice, the government expects that many employers will do so, particularly where the excepted agreement forms part of a settlement agreement.
- Informed written consent: After receiving the independent advice, the worker must confirm in writing that they wish to enter into the agreement. This is intended to ensure that the worker gives their clear and informed consent to the NDA.
- Cooling-off period: The agreement must include a 14-day cooling-off period during which the worker can withdraw from the agreement without penalty. This is a safeguard to allow workers time to consider the implications of the NDA.
- Written copies: All parties must receive a written copy of the agreement, in an accessible format where necessary, so they can readily understand and refer to the terms.
- Scope of the NDA: The NDA must relate only to incidents of harassment or discrimination that have already occurred, rather than future conduct. As a result, so-called “pre-dispute” NDAs, which seek to prevent workers from speaking out about future incidents, would be void and would not qualify as an excepted agreement.
The consultation also seeks views on whether NDAs should be time-limited rather than lasting indefinitely and whether to expand the list of permitted disclosures. Existing regulatory requirements already ensure that confidentiality provisions cannot prevent disclosures to certain individuals and bodies, such as law enforcement, regulators, professional advisers, support services and close family members. The government is considering whether to extend this list to include prospective employers.
Considerations for employers
While NDAs will not disappear entirely, in practice, these changes are likely to reduce flexibility in how employers approach settlement discussions and increase the procedural steps required to achieve a binding agreement.
One of the most significant uncertainties is the extent to which employers will be able to propose NDAs. If the final regime limits NDAs to situations where they are clearly initiated by the worker, this could materially reduce their use as a tool for resolving disputes and managing reputational risk. Even if employers retain the ability to suggest NDAs, the emphasis on informed consent and safeguards is likely to change the tone and structure of negotiations.
The proposed safeguards may also raise practical challenges. Requirements such as independent advice, written confirmation and cooling-off periods are likely to extend timelines and create additional administrative steps. They may also introduce uncertainty, particularly where an NDA forms part of a settlement agreement. Employers may need to reconsider how they structure confidentiality provisions, including how these obligations interact with financial terms and other elements of a settlement.
There is also potential for the scope of the regime to expand. The consultation invites feedback on extending these protections beyond employees and workers “at some point in the future” to include agency workers, secondees and other individuals.
What actions should employers take?
Employers should start reviewing their current use of NDAs, particularly in settlement agreements, and consider whether existing approaches would remain effective under a more regulated framework. Processes may need to adapt to accommodate additional requirements such as written consent and cooling-off periods, which could make negotiations more structured and time-consuming.
More broadly, these reforms place greater emphasis on addressing the underlying issues at source. Robust policies, effective investigations and clear reporting channels will be increasingly important, as reliance on confidentiality provisions reduces.
Employers may wish to consider responding to the consultation to help shape the final requirements for a valid excepted agreement. The consultation closes on 8 July 2026.
