The Victims and Prisoners Act 2024 (Section 17) provides that any Non-Disclosure Agreement (“NDA”) and/or settlement agreement which includes an NDA (or confidentiality clause), entered into on or after 1 October 2025, should not seek to prevent victims of crime from making certain disclosures.
The changes make clear that any NDA or settlement agreements which include an NDA (confidentiality clause) entered into on or after 1 October 2025 will be legally unenforceable against victims of crime in relation to the disclosure of information about relevant conduct to the following groups and for the following purposes:
- Police or other bodies which investigate or prosecute crime, for investigating or prosecuting the relevant conduct
- Qualified lawyers, for seeking legal advice about the relevant conduct
- Regulated professionals (including regulated healthcare professionals), for obtaining professional support in relation to the relevant conduct
- Victim support services, for obtaining support in relation to the relevant conduct
- Regulators, for cooperating with the regulator in relation to the relevant conduct
- To a person authorised to receive information on behalf of any of the above, for the relevant purposes mentioned above
- A victim’s close family, for the purpose of obtaining support in relation to the relevant conduct
Disclosures by victims of crime about relevant conduct to the above groups and for the above purposes are known as “Permitted Disclosures”.
The Ministry of Justice has issued guidance here: https://www.gov.uk/government/publications/victims-and-prisoners-act-2024-changes-to-non-disclosure-agreements/victims-and-prisoners-act-2024-changes-to-non-disclosure-agreements.
Schools and trusts will need to ensure that all relevant personnel are made aware of these changes and that their template settlement agreements and/or template COT3 wording is updated to reflect these changes with immediate effect.
In addition to these changes, schools and trusts who are subject to the requirements of the DfE Academy Trust Handbook (“the Handbook”) should also be mindful of the restrictions that the Handbook places on the use of confidentiality clauses/NDAs in the context of staff severance payments.
This briefing is not intended to be an exhaustive statement of the law and should not be relied on as legal advice to be applied to any particular set of circumstances. Instead, it is intended to act as a brief introductory view of some of the legal considerations relevant to the subject in question.
For further advice on settlement agreements and the use of NDAs or any other legal issue in schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690.