Last reviewed 19.11.2025
What is the current situation?
Non-disclosure agreements (NDAs) are often used as part of settlements - for example, a confidentiality clause in a settlement agreement is an NDA. Currently, NDAs are only prohibited when it comes to allegations of whistleblowing and certain issues around victims of criminal conduct.
So what’s changing and when?
The Government has acknowledged that businesses need to use NDAs to protect sensitive business and commercial information, but its aim is to prevent employers from misusing NDAs to silence workers about harassment and discrimination.
Under the Employment Rights Bill, an employer will not be able to use an NDA to stop a worker from making harassment or discrimination allegations. It also won’t be able to stop the worker talking about the employer’s response to the harassment or discrimination, or how it responded when the allegation was made (for example, if the employer has failed to investigate an allegation, or if the employer gave a poor performance review as a result of an allegation). It is not completely clear, but third-party harassment claims are likely to be included. There is also some uncertainty around whether all types of victimisation are covered.
The change will also apply to non-disparagement clauses (clauses in an agreement that prevent both parties making derogatory comments about the other). This means that a worker will not be breaching a non-disparagement clause if they talk about harassment or discrimination, or an employer's response to it, even if this is in disparaging terms.
These changes will have a significant impact on the settlement of harassment and discrimination allegations, as well as the wording around confidentiality which is used in contracts and policies.
The Government plans to consult on these proposals and it is currently unclear when they would take effect. Although it is likely that the legislation will permit some exceptions (for example, if the NDA is requested by a worker), this detail is likely to be set out in regulations.
What you need to do
The timing of some of these actions will depend on when the detail of the new laws is finalised and when the changes come into force. However, you can start to plan now:
- Update your HR policies and practices (including template settlement agreements) regarding the use of NDAs and confidentiality wording.
- Take preventative measures to reduce harassment/discrimination risks within your organisation including dealing with any concerns that are raised by workers promptly, in a thorough and sensitive manner. In particular, review your anti-harassment/bullying and equality policies regularly and ensure that your managers are properly trained. The better you are at managing risks relating to harassment/discrimination, the less likely you are to have to rely on an NDA.
- Think about how you could adapt the approaches you currently take to reaching a settlement/negotiating an exit with a worker.
How we can help
- Sign up to our updates as the legal changes come in, so you can stay compliant and up to date.
- We have detailed HR and employment law guidance, template policies and letters on our website in the HR & Legal Resources section, which will be maintained as the changes come into force.
- Our team of employment lawyers is happy to help if you’ve got questions or need advice. And if you need hands-on support with any projects as you prepare for the changes, our HR and legal consultants can work with you to get the right steps in place and stay compliant.
- Use our ERB enquiry line ([email protected]) for real-time access to legal specialists when you need quick answers about the Employment Rights Bill.
- Ask about our Right track review (coming soon): A focused, in-business audit with clear, practical steps to keep you compliant.
- You can also shape future policy. We speak regularly with Government and feed into consultations, using input from businesses like yours.
Ongoing employment law and HR support
- For longer-term support, our retained service includes:
- Direct access to employment law experts.
- Regularly updated HR policies and templates.
- Advice for day-to-day issues and bigger picture planning.
- The chance to help shape Government policy.
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