On 15 April 2026, the government launched a consultation on regulations to prevent the misuse of non-disclosure agreements (NDAs) in cases of workplace harassment or discrimination.

NDAs

NDAs are formal agreements or clauses used to keep information confidential by preventing disclosure.  Historically, they have been used to protect commercial data, trade secrets and sensitive business information.  Within the employment relationship they have been used in employment contracts and settlement agreements.

However, NDAs have faced increased public criticism particularly following the #MeToo movement where there was concern that they were being  used to prevent parties from disclosing allegations of sexual harassment or other  workplace misconduct.

New NDA legislation

In addition to a number of restrictions already in place regarding the use of NDAs to address the concerns, a new section 202A of the Employment Rights Act 1996 will be introduced by the Employment Rights Act 2025, which voids any provision which prevents a worker from speaking out against “relevant harassment or discrimination” or their employer’s response to such or the making of an allegation. “Relevant harassment and discrimination” covers misconduct under the Equality Act 2010, including discrimination or harassment by the employer, their workers or affecting the worker or their colleagues.

Although it is not yet in force, this change will apply to confidentiality provisions in agreements between employers and workers, such as those commonly seen in employment contracts and settlement agreements. However, it will not apply retrospectively or void any NDAs which meet the “excepted agreement” conditions.

Consultation

The government’s consultation seeks responses as to i) the conditions for an excepted agreement, ii) who “permitted disclosures” can be made to and iii) the potential application of the NDA restriction to individuals other than workers.

Excepted agreements

    NDAs concerning harassment or discrimination will remain enforceable if they satisfy certain criteria, which will be set out in forthcoming regulations. The consultation is seeking feedback on the proposed conditions for a valid excepted agreement, which include the following:

    • Parties must receive written independent legal advice on the terms and effect and legal limitations of the NDA before entering into an excepted agreement.  This advice should cover such matters as the scope of confidential information, conditions on disclosures, legal consequences of breach, and the fact that the NDA cannot prevent whistleblowing, reporting crime, or disclosures to prescribed persons under the permitted disclosures regime.
    • Workers must express their written preference to enter into an excepted agreement, following such legal advice.  There are additional issues that arise as to whether an employer should be able to suggest confidentiality or whether this can only be initiated by the worker.  
    • The excepted agreement should include a penalty-free cooling off period of 14 calendar days. The consultation raises several significant practical questions in relation to this cooling off period: Should it apply only to the confidentiality clauses or to the whole agreement?  Should the worker be able to waive the period?  Would a shorter period (7 or 10 days) be preferable to facilitate settlement near tribunal hearing dates?  How would this interact with statutory time limits for bringing tribunal claims?
    •  All parties must be given a written copy of the agreement
    • The agreement may only be entered into where harassment or discrimination has occurred or is alleged to have occurred.  This would effectively mean that any “pre-dispute” confidentiality provisions that purport to restrict disclosures about future incidents of harassment or discrimination are unenforceable.
    • The agreement should be subject to a time limits and the consultation asks whether a maximum duration should be mandated.

    The consultation acknowledges that, in certain situations, the use of NDAs in cases involving workplace harassment or discrimination may be justified. As such, it proposes that their use should be permitted only in limited circumstances and subject to the safeguards outlined above.

    Permitted disclosures

      The second area addressed by the consultation focuses on the government’s proposal to allow workers to make “permitted disclosures” to certain individuals or organisations, even where they are subject to an excepted agreement. The consultation suggests that disclosures should be permitted to the following categories:

      • Any person who has law enforcement functions
      • A qualified lawyer or registered foreign lawyer
      • Any individual who is entitled to practice a regulated profession or tax advisor
      • Any individual or organisation who provides service to support victims
      • A regulatory body
      • An individual or an organisation that provides services for purpose of advising on employment rights, conciliation, arbitration and mediation as it relates to settlements
      • A trade union representative accompanying workers in grievances and disciplinary cases, trade union equality representative or trade union representative authorised to give advice on settlement agreements
      • A person who is authorised to receive information on behalf of a person specified in all of the above
      • Close family members

      This approach aims to ensure that workers retain the ability to seek advice, support and protection, even when confidentiality restrictions are in place.

      Application to other individuals

        The consultation seeks feedback as to whether the restrictions on the use of NDAs should be extended to include others who do not fall within the definition of “worker” (under s.230(3) ERA 1996), such as self-employed contractors, agency workers or secondees.

        Next steps

        The consultation is open until 8 July 2026. The government is expected to publish its response and introduce secondary legislation thereafter, with the resulting changes likely to come into force in 2027. Employers will need to review and update their template settlement agreements, employment contracts, and any other documents containing confidentiality provisions, as well as their processes for handling workplace harassment or discrimination, to ensure compliance with the new requirements.

        Thank you to Hannah Featonby-Lyons for all her help in preparing this post