The situations in which employers can use non-disclosure agreements (NDAs) freely are ever narrowing. Following the government’s recent amendment to the Employment Rights Bill, which would render invalid any part of an agreement that attempts to prevent a worker from alleging or disclosing certain acts of harassment or victimisation, we highlight two other pieces of legislation which already ban NDAs, or will do so imminently, in certain circumstances.
NDAs are legal contracts, or individual clauses or provisions within a wider contract, which place confidentiality restrictions on one or both parties. They are commonly used by way of a confidentiality clause within settlement agreements between employers and employees.
Higher education providers
A ban on higher education providers in England and Wales entering into NDAs came into effect on 1 August 2025. The ban covers any NDA that purports to prevent a member of staff, student or visiting speaker from disclosing sexual abuse, sexual harassment or sexual misconduct, or any other bullying or harassment.
Victims of crime
The government has also laid before Parliament draft legislation to bring into force provisions of the Victims and Prisoners Act 2024, which render an NDA void if it purports to prevent a victim of crime from making a disclosure relating to such crime. Alongside this, the Ministry of Justice has issued guidance to inform businesses and individuals who use NDAs on how to ensure compliance with the new law. There are already several restrictions in place to protect parties to NDAs from being able to report serious concerns through the proper channels. At present, NDAs cannot validly prevent a person from reporting a crime to the police or from making a protected disclosure under whistleblowing protections.
However, there is currently nothing to prevent an NDA from excluding a party’s ability to report a crime to their close family or to seek other external support, such as through victim support services. This is set to change.
Key changes for victims of crime
NDAs signed on or after 1 October 2025 in England or Wales will become unenforceable to the extent that they seek to prevent individuals who are, or reasonably believe themselves to be, victims of a crime making a disclosure to certain bodies.
Once the law comes into force, NDAs will no longer be able to prevent disclosures of criminal conduct for the purposes of investigating, receiving support or legal advice, or claiming compensation to:
- the police or bodies that investigate or prosecute crime;
- qualified lawyers;
- regulated professionals, such as healthcare professionals;
- victim support services;
- the Criminal Injuries Compensation Authority;
- a court or tribunal for issuing or pursuing proceedings in relation to the relevant decision of the Criminal Injuries Compensation Authority;
- any person authorised to receive information on behalf of any of these bodies, such as a company’s secretary; or
- the close family of the victim (meaning only their child, parent or partner).
NDAs will still be able to prevent disclosure, even if made to one of the bodies set out above, if the main purpose of sharing it is to share it, or facilitate in sharing it, with the wider public. Similarly, if the individual does not make the disclosure for the purposes of investigating, receiving support or legal advice, or claiming compensation in connection with the relevant conduct as above, it will fall outside the scope of the new law and an NDA can prohibit that type of disclosure.
How can employers prepare?
The government’s guidance sets out some proposed ways in which businesses can prepare for the upcoming changes:
- Ensure that template NDAs and agreements containing confidentiality clauses are up to date to take account of these changes. The law will not affect any agreements already in place, but those made on or after 1 October 2025, which seek to prevent employees from making any of the new permitted disclosures, will be unenforceable to the extent they contradict the new law. It is best practice to set out explicitly within the NDA that the confidentiality provisions do not apply in respect of such permitted disclosures. This decreases the chance of confusion as to what is and is not allowed to be disclosed under the NDA, which can lead to enforceability risks later down the line.
- Update any internal guidance on the use of NDAs to ensure that those responsible for drafting or entering into NDAs are aware of the new law.
- Keep up to date with any future amendments to the law to ensure that NDAs remain compliant. For example, the government may update the list of bodies to whom an individual may make a permitted disclosure.
The future for NDAs
The government amendment to the Employment Rights Bill proposes restricting the use of NDAs related to harassment or discrimination. Under the new proposals, any part of an agreement that attempts to prevent a worker from alleging or disclosing certain acts of harassment or victimisation would be invalid. The provisions would also cover disclosures about the employer’s response to harassment and discrimination claims, not just the discrimination/harassment itself. Employers should be aware that their handling of complaints and internal investigations will therefore also be subject to these new requirements, which may limit the use of confidentiality provisions and require greater transparency in addressing such matters at work.
The proposals would still permit some “excepted agreements” if they meet specific conditions that the government would set out in regulations. The government’s impact assessment confirms that if a worker requests an NDA, it might fall outwith the planned ban. Still, even an “excepted agreement” might be void if it tries to stop a worker from raising a valid concern or making a disclosure. The ban would only catch disclosures related to harassment or discrimination with the remainder of any contractual provision still being valid.
If you require any advice in relation to NDAs, please get in touch with your usual Dentons contact.
