The Government has launched a consultation on proposals to restrict the use of non-disclosure agreements (NDAs) in cases involving workplace harassment and discrimination. The consultation forms part of the wider “Make Work Pay” reforms and follows the introduction of new statutory provisions in the Employment Rights Act 2025.
What is changing?
The Employment Rights Act 2025 introduces a new section 202A into the Employment Rights Act 1996. Once in force, this will render void any provision in an agreement (including employment contracts and settlement agreements) which seeks to prevent a worker from making disclosures about relevant harassment or discrimination, or the employer’s response to such conduct.
However, NDAs will not be prohibited entirely. The legislation allows for “excepted agreements”, which will remain enforceable provided they meet certain conditions to be set out in secondary legislation. The current consultation seeks views on what those conditions should be.
The consultation closes on 8 July 2026, with the Government expected to introduce implementing regulations ahead of the provisions coming into force (anticipated in 2027).
Key proposals
1. General restriction on NDAs in harassment and discrimination cases
The central reform is that NDAs will be unenforceable to the extent that they prevent workers from speaking out about:
- harassment or discrimination; or
- the employer’s response to such allegations.
This applies regardless of whether the NDA is contained in a settlement agreement or another contractual arrangement.
2. Introduction of “excepted agreements”
NDAs will remain valid only where they fall within a defined category of “excepted agreements”.
To qualify, the Government is proposing several safeguards, including:
- Independent legal advice: The worker must receive written advice from an independent adviser on the terms, effect and legal limitations of the NDA.
- Express, informed consent: The worker must confirm in writing that they wish to enter into the agreement after receiving advice.
- Cooling-off period: A proposed mandatory 14-day period during which the worker can withdraw from the agreement without penalty.
- Restriction to past conduct only: NDAs would only be permitted in relation to conduct that has already occurred, preventing the use of “pre‑emptive” confidentiality clauses covering future misconduct.
- Provision of written terms: The agreement must be provided in writing (and in an accessible format where required).
These conditions are intended to address concerns that NDAs have been used to exploit power imbalances and prevent workers from raising concerns about wrongdoing.
3. Permitted disclosures
Even where an NDA is valid, workers will retain the right to disclose information to certain individuals and organisations, including:
- lawyers and legal advisers;
- law enforcement authorities;
- regulators;
- medical professionals and support services;
- trade union representatives; and
- close family members for support purposes.
This reflects a policy aim of ensuring that workers can continue to access advice, support and reporting mechanisms despite any confidentiality obligations.
4. Potential extension of protections
The Government is also consulting on whether the protections should be extended beyond employees and workers to cover:
- agency and seconded workers;
- individuals on work placements or training; and
- certain categories of self-employed individuals.
Why is this significant?
If implemented, these proposals will represent a fundamental shift in the use of NDAs in employment disputes.
In particular:
- NDAs will no longer be an effective tool to prevent disclosure of harassment or discrimination unless strict conditions are met;
- settlement agreements in such cases will become more complex and procedurally burdensome; and
- employers will face greater scrutiny of their use of confidentiality clauses, both legally and reputationally.
The introduction of a non-waivable cooling-off period is likely to have a particularly significant impact on settlement negotiations close to tribunal hearings, where time pressures are often acute.
What should employers do now?
Although the reforms are not yet in force, employers and HR teams should begin preparing for change:
- Review template agreements: Consider whether current NDA wording would comply with the proposed “excepted agreement” framework.
- Reassess use of NDAs in investigations and exits: In discrimination and harassment cases in particular, employers should carefully consider whether confidentiality provisions are appropriate.
- Prepare for longer settlement processes: The proposed safeguards (especially the cooling-off period) may extend negotiation timelines and reduce certainty around settlement finality.
- Train HR and managers: Ensure those handling grievances and exits understand the direction of travel and the increased sensitivities around NDAs.
- Consider reputational risk: Beyond legal compliance, there is a clear policy shift towards transparency and accountability in workplace culture.
Next steps
The consultation closes on 8 July 2026, after which the Government will publish its response and draft regulations.
Employers may wish to engage with the consultation process, particularly where the proposals could have a material impact on their settlement practices.
If you require assistance in relation to these proposals or require any help updating your policies, please contact a member of our team: employment@wslaw.co.uk