The future use of NDAs in the workplace

The use of NDAs in the workplace is changing. We look into what employers need to be aware of to ensure they’re up to date with the law.

A non‑disclosure agreement (NDA), or confidentiality clause, is a contract or a clause in a contract/settlement that limits or prevents a worker (or former worker) from disclosing certain information. This might be commercially sensitive information, trade secrets, or the terms/circumstances of a settlement. Sometimes, more controversially, NDAs have been used – or, some would say, misused – to prevent disclosure of harassment, discrimination, or how an employer has responded to such issues.

The legal & policy background

Over recent years, there has been increasing concern in the UK about the misuse of NDAs – particularly ‘gagging clauses’ that prevent victims of harassment or discrimination from speaking out. Campaign groups, media exposés (including through #MeToo), and legal/academic scrutiny have highlighted how NDAs can silence victims, prevent accountability, and create a culture of fear. There has been increasing calls for reform.

What does the Employment Rights Bill say about NDAs?

The government is aiming to reduce the use of NDA via the Employment Rights Bill (along with legislation, eg. the Victims and Prisoners Act 2024) which is currently in the final stages of consideration of amendments before it receives royal assent. The key measures on NDAs seek to restrict the misuse of NDAs in cases of harassment and discrimination. The key features are:

Ban/voidability of certain NDAs

• Under Clause 22A in the Employment Rights Bill, any provision in a contract or agreement between an employer and a worker that precludes a worker from making an allegation or a disclosure of information about “relevant harassment or discrimination” will be void. This includes disclosures about how an employer responded.
• “Relevant harassment or discrimination” refers to harassment or discrimination as defined in the Equality Act 2010. It will consist of conduct engaged in by an employer of the worker or another worker of the employer, or if the person who is alleged to be the victim of the harassment or discrimination is the worker or another worker of an employer of the worker.

Who is covered?

The new protection will not only apply to current workers and employees but allows the government to make regulations to include former employees/workers, contractors, trainees, those on work experience, etc. within the definition of ‘worker’.

Relation to other laws (Whistleblowing, Victims & Prisoners Act, etc.)

Whistleblowing law already provides that any contractual clause which prevents a worker from making a protected disclosure is void under Section 43J of the Employment Rights Act 1996. Protected disclosures are those which meet certain criteria (wrongdoing, public interest, etc.).

The provisions on NDAs in section 17 of the Victims & Prisoners Act 2024, came into force on 1 October 2025, and prescribes that NDAs will be unenforceable for victims (or people who reasonably believe they are victims) of criminal conduct, when it comes to disclosures about the crime to specific persons (police, qualified lawyers, certain regulated professionals).

Excepted agreements/regulations

The legislation provides for ‘excepted agreements’ – where certain confidentiality/NDAs may still be valid if they meet conditions prescribed via regulations by the Secretary of State. The precise definition and thresholds for these excepted agreements are yet to be fully clarified – for example, if the NDA is requested by the workerrather than imposed, that may be a factor.

Also, NDAs protecting legitimate business interests (trade secrets, commercially sensitive information) are expected to remain lawful where appropriately limited and don’t restrict a worker’s right to earn a living or compete.

Changes coming into force & timing

Several changes are phasing in, or are already active, alongside the Employment Rights Bill:

• From 1 October 2025: Section 17 of the Victims & Prisoners Act 2024, introduces new rules restricting NDAs for victims of crime, making certain NDAs void in cases preventing reporting of criminal conduct.
• Higher education providers: As of 1 August 2025, regulations bring into force key provisions of the Higher Education (Freedom of Speech) Act 2023 which will prevent  registered higher education providers in England and Wales from using NDAs in relation to complaints of bullying, sexual harassment, sexual misconduct, etc.
• The Employment Rights Bill amendment (clause 22A) is under parliamentary process. Once passed, it will ban NDAs or clauses which suppress harassment/discrimination disclosures.

Is the Employment Rights Bill clear?

While these reforms are significant, there are still areas of uncertainty and limitation.

• Retrospectivity: It’s not entirely clear whether or how existing NDAs (already signed) will be affected. Some reports suggest the legislation will void clauses whether existing or future, but the need for regulations and definitions (eg. excepted agreements) may allow some exclusions.
• Scope of ‘harassment or discrimination’: The legislation as currently drafted only includes limited categories from the Equality Act, whilst others – like failure to make reasonable adjustments and victimisation – don’t appear to be included.
• Definition of ‘excepted agreements’: Conditions under which NDAs remain valid (even with harassment/discrimination) are yet to be clarified by regulations. Employers will need to wait for secondary legislation.
• Other kinds of misconduct/non‑harassment wrongdoing: The reforms are particularly aimed at harassment/discrimination (and criminal conduct via the Victims & Prisoners Act), but do not automatically extend to all types of misconduct or all wrongful behaviour. Some types of behaviour may still be subject to NDAs unless they fall under already-defined protected disclosures or other grounds.
• Enforcement/practical complexity: Even with laws in place, how NDAs are challenged, what constitutes sufficient evidence, and what happens in settlement negotiations will matter. Businesses will also need to audit and revise templates, and ensure legal advice is provided where required.

Implications for employers

It is advisable that employers:

• review existing contracts, settlement agreements, and template NDAs/confidentiality clauses. Clauses trying to prevent a worker from complaining about harassment or discrimination may be unenforceable
• should ensure that any NDA or confidentiality clause does not suppress disclosures of harassment/discrimination, or suppress how the employer has responded to it
• should be prepared to offer or ensure independent legal advice for employees entering into such agreements
• are careful when drafting ‘excepted’ NDAs – ensure legitimate confidentiality content (trade secrets, commercial information) are narrowly tailored and do not encroach on new protections, and ensure you are up to date with any regulations made by the Secretary of State on this issue.

Broader significance

These changes represent one of the most substantial overhauls in worker protection around NDAs in recent memory in England and Wales. They reflect a shift not simply of policy, but of principle – that confidentiality generally should not be used to shield wrongdoing, or to silence those who have been mistreated.

They also recognise the power imbalance in many employment settings, especially when people feel they must sign agreements under pressure. By automatic voidability of clauses in certain contexts, the law removes some of that pressure.

The amendments to the Employment Rights Bill, and associated reforms (through the Victims & Prisoners Act 2024, higher education regulation, etc.), mark a watershed moment for NDAs in England and Wales. Contracts or agreements that try to stifle complaints or the reporting of harassment or discrimination will increasingly be unenforceable. However, the full effect will depend heavily on how the secondary regulations define ‘excepted agreements’, how the law is interpreted in courts, and how retroactivity is handled.

If you have any questions or queries regarding the changes, please do not hesitate to get in touch with our team of experts.

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