Consultation on the Government’s proposals to prevent the misuse of non-disclosure agreements (NDAs) in cases of workplace harassment and discrimination is still underway. This follows the suite of changes introduced by the Employment Rights Act 2025 (ERA 2025). The banning of NDAs was initially mooted as a solution to the issues highlighted by the #MeToo movement, and by the inappropriate use of NDAs challenged by campaigners including Zelda Perkins, an employee who had been silenced from speaking about allegations of sexual misconduct by Harvey Weinstein.
Current NDA use in employment contexts
At present, NDAs are a legally enforceable and standard feature of settlement agreements, conciliation agreements (COT3s) and employment contracts to resolve employment disputes and keep certain information confidential. In circumstances where defending or pursuing a claim in the Employment Tribunal could take multiple years due to resourcing issues, system backlogs and timetabling delays for hearings, many individuals may not see justice for several years – and only then after the stress and expense of litigation.
Overly restricting the legitimate use of NDAs could reduce employers’ willingness to enter into settlement agreements and COT3s, jeopardising an important route for claimants to resolve potentially costly and protracted disputes. Through settlement, claimants benefit from the accelerated receipt of funds, an opportunity to move on, and the ability to avoid both the inherent risks of litigation and the reputational consequences of litigating against a former employer.
For employers, NDAs form an essential component of the compromise. They enable employers to take a reasoned commercial view on settling disputes on a non-admission basis in the knowledge that, save for certain already permissible circumstances, the employee who has freely chosen to settle their dispute will not subsequently disclose the details of their earlier complaint publicly. Used lawfully, NDAs can be a useful mechanism to create trust in employment contexts, and prevent allegations – whether truthful or ‘fake news’ – being disseminated after settlement. For our private office clients, NDAs serve an important purpose in protecting the privacy of high-profile individuals and other sensitive matters to which employees may be exposed during their employment.
Existing safeguards
There are certain restrictions already in place to prevent the misuse of NDAs. Alongside published guidance from the EHRC and ACAS on the use of NDAs, the SRA Warning Notice, and the Law Society practice note on NDAs and confidentiality clauses, legal requirements currently in force include that:
- NDAs cannot be used to prevent an individual making a protected disclosure; although the disclosure would need to qualify as such, in practice, many disclosures concerning harassment or discrimination are likely to meet the test at law. As of 6 April 2026, the ERA 2025 explicitly added disclosures about ‘sexual harassment’ to the list of categories which qualify for protection under the whistleblowing legislation.
- Since 1 October 2025, in England and Wales it has not been possible for NDAs to restrict victims of criminal conduct from making certain disclosures to groups such as the police or legal professionals.
- NDAs cannot be used in certain higher education contexts to silence allegations of “misconduct”.
The ERA 2025’s proposals
The ERA 2025 is set to introduce section 202A, which will render void any provision within an agreement made between an employer and worker that seeks to prevent the worker speaking about ‘relevant harassment or discrimination’, the employer’s response to it, or the making of such an allegation.
However, recognising that there are circumstances in which confidentiality may appeal to workers in cases of harassment or discrimination, the proposals provide for ‘excepted agreements’, which would not be rendered void by s.202A.
The ongoing consultation seeks views on the conditions to be attached to such ‘excepted agreements’. These new provisions, which will not apply retrospectively, include:
- The requirement that workers take independent written legal advice on the terms, effect and legal limitations of the proposed confidentiality obligations before signing NDAs.
Our comments:
It is already a requirement in England and Wales that individuals obtain legal advice on the terms and effect of any settlement agreement prior to signature, and it is good practice to ensure that signatories to an NDA obtain legal advice beforehand. The requirement for such advice to be written is important, as it provides a greater degree of certainty where there are questions as to whether an NDA has been used to take unfair advantage of a worker.
It is not currently proposed that employers must cover the cost of this independent legal advice, but given that this is common practice for settlement agreements, it may be reflected here.
- The requirement that workers must confirm in writing their agreement to enter into any NDA.
Our comments:
Workers needing to request NDAs would increase certainty that the NDA is being entered into knowingly by them and without coercion. However, will employers be able to suggest the legitimate use of confidentiality provisions as an option, or provide proposed confidentiality clauses as part of an initial draft, without creating the appearance of pressure?
- A mandatory 14-day cooling-off period, during which the worker may withdraw from the agreement without incurring a penalty.
Our comments:
The consultation will need to consider situations where cases settle shortly before an Employment Tribunal hearing.
- A copy of the signed NDA should be provided in writing to all parties and in an accessible format, potentially with a plain language version to improve accessibility.
Our comments:
The SRA Warning Notice already allows individuals to keep and receive copies of an NDA they have signed, but this condition could make it a requirement.
- Excepted agreements must cover past conduct only, meaning harassment or discrimination that has already occurred.
Our comments:
This would prevent ‘pre-dispute’ NDAs that seek to prevent an individual from speaking out about future harassment or discrimination.
- Time-limited confidentiality (consulting on a statutory maximum duration of potentially 1 year, 2-3 years, 4-5 years, or 6-10 years).
Our comments:
At present, confidentiality obligations in NDAs may be drafted to apply indefinitely, subject to the relevant information entering the public domain. Time-limited confidentiality may disincentivise employers from settling, and conversely may be problematic for individuals for whom confidentiality is essential.
The Government is also considering the categories of people to whom workers should be able to make permitted disclosures, even after they have signed an ‘excepted agreement’ – for example, close family, legal and medical professionals, law enforcement bodies and regulatory bodies. If the Government were to include prospective employers in this list, they would not be bound by the confidentiality obligations, affecting the security of an NDA’s guarantee of confidentiality.
Commentary
While the use of NDAs to hide workplace harassment or prevent victims from speaking out remains a serious concern, there are already several sensible and effective safeguards in place to guard against NDAs being used abusively.
The balance between commercial utility and providing proper protection for victims of harassment and discrimination is an important one, but the ramifications of overly limiting the use of NDAs could be substantial. If employers are less incentivised to offer compensation as part of a compromise that necessarily includes a legitimate NDA, this could risk jeopardising a well-used route to resolve employment disputes, with a knock-on effect on the Tribunal system and access to justice.
If Parliament is serious about levelling the playing field, it should consider introducing a presumption of anonymity for both claimants and respondents in Employment Tribunal cases involving allegations of harassment or discrimination in the workplace (unless the parties choose to waive this right). This would be preferable to continuing the practice of publishing Employment Tribunal judgments online, where parties have no control over whether they are named, even if they win their case.
Such an approach would no doubt encourage claimants to come forward with greater confidence, while also reducing the risk of innocent parties being publicly named. Although there is already a right to apply for anonymity, which is often used in cases involving allegations of sexual harassment, such applications are typically used by those who have the benefit of independent legal representation. Allowing claimants to bring and run discrimination and (sexual) harassment cases anonymously would remove a potential barrier to alleged victims coming forward.
For more information, please contact someone in the Employment Department. Alternatively, call us on 020 7465 4300.
This article featured in our Spring edition of ‘IN CASE’, our Employment newsletter for HR Directors.
