Latest government proposals for non-disclosure agreements (NDAs)

The Government has issued a new consultation on its proposals for restricting the use of non-disclosure agreements (NDAs) in relation to allegations of workplace harassment and discrimination, introduced under the Employment Rights Act 2025.

Separate regulations will set out the circumstances when NDAs are permitted, once section 24 of the ERA 2025 comes into force. The Government has indicated that this is likely to be in 2027.

New restrictions for NDAs

Under the proposed reforms, from a date to be confirmed in 2027, any new contractual provision that prevents a worker from speaking about “relevant harassment or discrimination” will be void, unless it meets strict statutory conditions. This will apply to confidentiality provisions in employment contracts, settlement agreements and COT3 agreements conciliated via Acas.

“Relevant harassment and discrimination” is defined by reference to the Equality Act 2010, including harassment (such as sexual harassment) and discrimination based on protected characteristics.

These reforms will apply prospectively only, meaning that existing NDAs will not be affected. Importantly, the person entering the NDA does not have to be the victim of the alleged conduct; the restriction can also apply where the conduct was directed towards a fellow worker.

When will an NDA still be permitted?

NDAs will remain enforceable only where they form part of an “excepted agreement” that satisfies conditions set out in regulations. The consultation proposes the following key conditions.

1. Independent advice

Before entering into an excepted agreement, the worker must receive independent advice in writing covering the terms and effect of the NDA and its legal limitations (for example, that it cannot prevent whistleblowing or reporting a crime). This requirement already applies to settlement agreements, but it would extend to all types of agreements, including an NDA relating to harassment or discrimination.

The adviser must be identified in the agreement and have appropriate indemnity insurance. The Government does not propose to require employers to pay for this advice, although it recognises that many already do so in practice.

2. Explicit written consent

After receiving advice, the worker must confirm in writing that it is their preference to enter into the NDA. If this does not happen, the confidentiality provisions will be unenforceable insofar as they relate to harassment or discrimination.

The Government is also consulting on whether employers should be permitted to suggest confidentiality arrangements, provided these safeguards are in place.

3. Cooling-off period

Excepted agreements would include a statutory cooling-off period, proposed as 14 days, during which the worker could withdraw without penalty. The consultation asks whether the period should be shorter (7 or 10 days) and whether it should apply only to the confidentiality provisions. The Government is also considering whether workers should be able to waive the cooling-off period.

4. Written and accessible agreement

A written copy of the accepted agreement must be provided to all parties, in an accessible format where required. The Government favours encouraging, but not mandating, plain English drafting through guidance rather than regulations.

5. No “pre-dispute” NDAs

NDAs would only be permissible in relation to alleged harassment or discrimination that has already occurred. Confidentiality clauses aimed at preventing disclosure of future harassment or discrimination (for example, in standard employment contracts) would be unenforceable.

6. Time limits

The Government is consulting on whether confidentiality obligations should be time-limited and whether a statutory maximum duration should apply.

Who can workers still speak to?

Even where a valid excepted agreement exists, workers would be allowed to make “permitted disclosures”, including to:

• law enforcement bodies
• lawyers
• regulated professionals (such as doctors)
• victim support services
• regulators (such as the EHRC)
• Acas
• trained trade union representatives, and
• close family members for support.

The consultation asks whether disclosure should also be permitted to prospective employers, but explicitly rules out unrestricted disclosure to friends.

Possible future extensions

The Government is also consulting on whether these protections should, in due course, be extended beyond the standard definition of “worker”.  This could include agency and secondee workers, individuals on work placements or in professional training, and certain groups of self-employed individuals. Any such extension is likely to be phased and subject to further consultation.

What this means for UK employers

If these changes are implemented as proposed, it means that NDAs will be ineffective to prevent the disclosure of alleged harassment or discrimination, unless all the regulatory conditions are met.

Standard confidentiality clauses in employment contracts and template settlement agreements will need to be carefully reviewed, particularly where they seek to cover future conduct.

Settlement processes may become more complex and slower if the requirement for additional advice, written consent and a statutory cooling-off period is confirmed. It might become more difficult to agree to last-minute settlements, at or shortly before a tribunal hearing.

Next steps

The consultation closes on 8 July 2026. The Government will then analyse responses and publish its formal response. Regulations setting out the conditions for excepted agreements will follow, and are likely to take effect in 2027. Until that process is complete, the precise scope and timing of the changes remain subject to change.