On 7 July 2025, the government published several amendments to the Employment Rights Bill (ERB), including provisions that address the use of NDAs.
The proposed amendments to the ERB will, if passed, mean that any provisions in an agreement between an employer and a worker (including settlement agreements and employment contracts) will be void if they try to prevent the worker from making “an allegation of, or disclosure of information relating” to:
- “relevant harassment or discrimination”, or
- “the employer’s response to the harassment or discrimination or making of the allegation or disclosure”.
The terms “allegation” and “disclosure of information” have not been defined. In whistleblowing law, a disclosure of information is one that sets out specific facts, and so cannot be a “mere allegation”. However, as the amendment specifically refers to “allegations”, these provisions may apply to “mere allegations” of harassment or discrimination that do not contain any factual specificity. So, for example, an allegation made by a staff member that he or she was “harassed” by a manager (but where no details of the harassment are set out), may be covered.
Relevant harassment or discrimination
Allegations and disclosures of information relating to all types of discriminatory harassment under the Equality Act will be covered – namely sexual harassment and harassment related to age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. All types of direct and indirect discrimination are also covered, as well as discrimination arising from disability.
Notably, allegations relating to victimisation and a failure to make reasonable adjustments are not expressly included, and it is currently unclear whether this omission is deliberate. However, it was clarified at the House of Lords report stage of the Bill that the reference to allegations or disclosures of information pertaining to the “response of an employer” to harassment or discrimination refers, for example, to instances where an employer has failed to investigate an allegation, or has subjected an employee to a poor performance review or other unreasonable conduct because they have raised an allegation of discrimination. So, if an employer responds to an allegation by victimising the employee, then that would seemingly be covered.
It is unclear whether an employer’s “response” to harassment or discrimination may also include the offer of a settlement agreement, or, even, the terms set out in the agreement (which would currently almost always be confidential).
Allegations concerning co-workers
Unsurprisingly, allegations and disclosures of information concerning the conduct of the employer or of any co-worker will be covered. In addition, allegations and disclosures of information which concern the treatment of fellow workers are also included. So, if a worker makes an allegation that a fellow worker has (for example) been harassed, then any NDA could not prevent them from repeating that allegation more widely.
The provisions state that the ban will not apply to certain agreements that satisfy “such conditions as the Secretary of State may specify in regulations” – which will be known as “excepted agreements”. However, currently, the draft legislation does not specify what an excepted agreement is.
Implications of the ban
Currently employers and solicitors are encouraged to include a number of “carve outs” in NDAs and there are regulatory implications for solicitors in not adhering to the Solicitors Regulatory Authority guidance about this. These carve outs include provisions which state that the NDA will not prevent workers from co-operating with a criminal investigation or reporting an offence, among others. In addition, under current law, any provision which seeks to prevent a worker from blowing the whistle is void.
There are also some separate changes to the law on NDAs which will come into effect very soon:
- On 1 August 2025, certain NDAs are banned in higher education settings; and
- On 1 October 2025 provisions in agreements that prevent victims of criminal conduct from disclosing certain information will be void e.g. preventing the victim from disclosing information to a lawyer or a person with law enforcement functions.
However, these proposed provisions go much further than this and essentially mean that workers who enter into a settlement agreement will always be permitted to repeat any allegations of harassment or discrimination made during their employment to any third party unless the agreement falls into an excepted agreement (and we do not yet know what the conditions for this are).
Many will welcome this as another step forward in efforts to protect workers from discrimination and harassment in the workplace. However, others have raised concerns that this ban removes a major incentive for employers to agree a settlement with employees, some of whom may prefer to reach a confidential financial settlement, and have no interest in repeating any allegations they may have made during employment. If some employers become unwilling to agree a settlement as a result of this ban, those employees’ only recourse would be to bring an Employment Tribunal claim, which is a lengthy and often expensive process.