Government consultation on non-disclosure agreements

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.

NDAs have attracted a lot of controversy in recent years and in particular about the misuse of workplace NDAs used by some employers to silence workers from speaking out about sexual harassment and other complaints.

In October 2025, the Victims and Prisoners Act 2024 was brought in which voids any NDA clause which prevents a victim of crime, or someone who reasonably believes they are a victim of crime, from disclosing information about such conduct to specified people such as the police, lawyers, regulators, victim support services or close family members.

The Employment Rights Act 2025 will go further and significantly restrict the use of workplace NDAs in cases of harassment and discrimination, limiting when employers can prevent individuals from speaking out, as set out below. On 15 April the government launched a consultation on how the new rules might apply in practice, including the types of agreement they will apply to, who individuals should still be able to speak to, and whether the rules should extend beyond the current definition of 'worker'.

Employment Rights Act 2025: changes to NDAs

The Employment Rights Act 2025 (ERA) has brought in a vast number of changes to employment rights. Full details of the reforms are available on our Employment Rights Act insights page.

What changes has it made to NDAs?

The ERA will introduce a measure which voids any provision in an agreement made between a worker and their employer that seeks to prevent a worker from speaking out about "relevant harassment or discrimination" or their employer's response to the relevant harassment or discrimination, or the making of an allegation of relevant harassment or discrimination.

For the harassment or discrimination to be "relevant" it must have been carried out (or alleged to have been carried out) by the employer or another worker of the employer or the victim of the harassment or discrimination is the worker who entered into the NDA (eg the worker is harassed by the employer's client and subsequently enters into an NDA with the employer).

What will the restriction on NDAs cover?

This restriction will relate to allegations about all types of discrimination and harassment, including disability-related claims. There is currently a question over whether victimisation will also be covered.

Will this apply to all agreements?

The provisions as currently drafted apply to confidentiality clauses in all types of agreement, including contracts of employment and settlement agreements.

However, there is scope for certain agreements to be 'excepted' in future regulations  and the government's consultation invites views on the proposed criteria for an 'excepted agreement'. This includes whether there should be some exemptions to the ban on NDAs for harassment or discrimination (for example, if the worker requests a settlement or if the worker receives independent advice on the agreement prior to entering into it). The full scope of this ban is therefore currently unknown.

When will this change be coming in?

In its implementation timeline, the government has confirmed that changes to NDAs will come into effect sometime in 2027.

What does the consultation cover?

In summary, the consultation is seeking views on proposals regarding:

• The conditions which need to be met for an NDA to still be validly entered into in cases of harassment or discrimination (an 'excepted agreement'). The government has proposed a number of safeguards which excepted agreements could be subject to in order for an NDA to be binding, including:
  • A requirement for the worker to receive written legal advice on the NDA, and for the adviser to be named in the NDA.
  • A need for a worker to express their preference in writing to enter into the excepted agreement.
  • An explicit right for a worker to withdraw from the agreement without penalty within 14 calendar days (a 'cooling off period').
  • A condition that NDAs can only relate to past discrimination or harassment.
• The individuals or bodies who workers covered by an excepted agreement can speak to about the harassment and discrimination, irrespective of what their NDA says.
• Expanding the types of individuals the legislation applies to beyond employees and workers (for example, it could include some self-employed individuals).

The consultation will close on 8 July 2026, following which the government will review responses and publish a government response

Implications for employers

In some respects, the government's proposals represent a softening of the blanket ban on NDAs that was originally trailed. Employers will still be able to use confidentiality provisions in certain circumstances, but only within tighter limits and with clearer safeguards. However, if brought in the restrictions are still likely to create practical and commercial challenges in implementation, particularly in navigating the proposed cooling-off period and managing the impact this may have on the timing, certainty and resolution of workplace disputes.  As a result, we are likely to see employers having a significantly reduced scope to prevent individuals from speaking about harassment and discrimination.

Once the government's consultation response is published, employers will need to review their template agreements and processes to ensure they are in line with a more structured, compliance-focused approach to using NDAs in the future.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances. 

© Farrer & Co LLP, May 2026