Ban on NDAs concerning workplace harassment/discrimination
Under changes to the law being made by the Employment Right Act 2025, provisions in an agreement, such as an NDA, which purport to prevent a worker from alleging or disclosing information about workplace harassment or discrimination, or about their employer’s response to such allegations or information, will be void. This change is expected to come into force in 2027. However, in certain circumstances it will remain possible for employers to enter into valid NDAs preventing workers from speaking out about such matters (“excepted agreements”) and the Government has issued a consultation seeking views on those circumstances.
Conditions for excepted agreements
The Government proposes that:
- Written independent advice: Before entering into an excepted agreement, the worker would need to have received independent advice on the terms and effect and legal limitations of the proposed confidentiality obligations. As with the current requirements for settlement agreements, the independent adviser would need to be named in the agreement and have indemnity insurance. Unlike the current requirements for settlement agreements, the Government proposes that the advice would have to be in writing. It does not proposes requiring employers to cover the cost of such advice but expects that employers will often do so, particularly where the NDA is contained in a settlement agreement where this is already common practice. It is also considering whether an Acas conciliator should be an independent advisor for these purposes so that Acas facilitated COT3 agreements could be “excepted agreements”.
- Worker’s preference for an excepted agreement: After receiving the independent advice, and before entering into the agreement, the worker would need to express to their employer in writing that it is their preference to enter into the excepted agreement. This could be in the form of an email or other written document to their employer. If a worker does not express their preference, the NDA would not be an “excepted agreement” and would be void in so far as it seeks to prevent the worker from speaking out about workplace harassment or discrimination (or the employer’s response). The Government seeks views on whether employers should be able to request that a worker signs an excepted agreement or whether this should be something that only the worker can raise.
- Cooling off period: An excepted agreement would need to include an explicit right for a worker to withdraw from the agreement without penalty within 14 calendar days of the agreement being entered into. The Government seeks views on whether the cooling off period should be shorter, whether it should be possible for a worker to waive the cooling off period and on whether a review period pre-signature would be preferable to a cooling off period.
- Written copy to be provided to all parties: An excepted agreement should be provided to all parties in writing, and in a format accessible to the parties, including by any party with a disability.
- Scope limited to past harassment/discrimination: An excepted agreement should only be able to prevent a worker talking about an incident of workplace harassment or discrimination that has (or is alleged to have) already occurred.
The Government is also considering:
- whether NDAs should be time limited and, if so, whether the Government should specify a maximum time limit in legislation, and
- whether an excepted agreement should have to be written in plain language and, if so, whether this should be a requirement set out in legislation or guidance.
Permitted disclosures
Workers who have entered into an excepted agreement will still be able to make disclosures to certain people for certain purposes. The Government proposes that workers will be able to make disclosures to:
- any person who has law enforcement functions
- a qualified lawyer for the purpose of seeking legal advice about workplace harassment or discrimination
- any individual entitled to practise a regulated profession or a tax advisor. This includes doctors, paramedics and social workers, for the purpose of obtaining professional support in relation to workplace harassment or discrimination
- any individual or organisation providing victim support services, for the purpose of getting confidential and independent support related to the effects of workplace harassment or discrimination
- a regulatory body for the purpose of making a disclosure or cooperating with them when they are investigating or advising on workplace harassment or discrimination
- individuals or organisations advising individuals on their employment rights, conciliation or mediation. This includes disclosures to Acas for the purpose of obtaining confidential advice and support in relation to workplace harassment or discrimination or an excepted agreement
- trade union representatives accompanying a worker in grievance or disciplinary cases, trade union equality representatives, or trade union representatives authorised to give advice on settlement agreements, for the purpose of obtaining confidential advice and support in relation to workplace harassment and discrimination or an excepted agreement, and
- close family members for the purpose of receiving support in respect of workplace harassment and discrimination. This includes children, parents, partners, siblings, grandparents, aunts or uncles, including half and step relations.
The Government seeks views on these categories and asks whether anyone else, such as prospective employers or friends, should be added to this list.
Protection for others?
The Government also asks whether other individuals who do not meet the standard definition of “worker” but who may be vulnerable to the misuse of NDAs should protected at some point in the future. This might include agency workers, seconded workers, those on work experience placements and self-employed individuals.
Responses to the consultation are required by 8 July 2026.