Could we see a ban on the use of Non-Disclosure Agreements?

Blog

19.03.2025

A Non-Disclosure Agreement (NDA) is an agreement that controls what information an individual can share with others. You might have heard them being called “gagging clauses” or “confidentiality clauses”. Most employment contracts, settlement agreements or COT3s will contain some form of NDA.

There has been increased scrutiny of NDAs since the allegations against Harvey Weinstein emerged in 2017, as part of which it became clear that he had used NDAs to prevent his accusers from speaking publicly about his alleged conduct.

There have been a number of inquiries and consultations on the use of NDAs since then, including by the Women and Equalities Committee (WEC) in 2019. The previous Conservative government committed to legislate on NDAs in response to the WEC report. However, so far, no legislation has been passed changing the law on the use of NDAs.

That could be about to change. An amendment has been tabled to the Employment Rights Bill which would make any NDA void insofar as it prevents a worker from making a disclosure about harassment or sexual harassment (other than at the worker’s request). In a debate about the Bill earlier this month, Louise Haigh, the Labour MP who proposed the NDA amendment, raised concerns about the “chilling effect” that NDAs continue to have and encouraged the Government to end their misuse.

The amendment is not currently supported by the Government, which means its chance of becoming law is low. However, this is unlikely to be the end of the matter. In the same debate, Justin Madders, Minister for Employment Rights, Competition and Markets, acknowledged the “significant problems” caused by the misuse of NDAs, confirming that the issue warranted further consideration: “We take NDA misuse seriously and will continue to look into it to see what we can do.”

Comment

It is not clear exactly what the Labour Government is proposing in relation to NDAs. They did not include any specific proposals on NDAs in their manifesto.

In practice, solicitors drafting NDAs already need to have regard to the Solicitors Regulatory Authority’s Warning Notice (first published in March 2018), which makes it clear that an NDA should not be used as a means of preventing:

co-operating with a criminal investigation or prosecution;
reporting an offence to a law enforcement agency;
reporting misconduct, or a serious breach of our regulatory requirements to a regulator;
making a protected disclosure under the Public Interest Disclosure Act 1998;
making any disclosure required by law; or
making a proper disclosure about the agreement or circumstances surrounding the agreement to professional advisers, such as legal or tax advisors and/or medical professionals and counsellors, who are bound by a duty of confidentiality.

It’s possible that the Labour Government may seek to put those requirements on a statutory footing.

Campaigners are pushing for the Government to go further than that, and follow legislative changes already made in Ireland, Canada and the US. In those jurisdictions, NDAs must not prohibit the disclosure of sexual harassment, discrimination or bullying, unless that is the express wish of the employee.

Labour has also announced that it will bring into force the ban on NDAs in higher education settings that had been put on hold in July 2024.

For more detailed information, see our previous related blog articles: