There have been long-standing concerns about the use of Non-disclosure agreements (NDAs), particularly relating to sexual harassment allegations. Those concerns have grown with the momentum of the MeToo movement.
The use of NDAs stands at a critical crossroads. Imminent and future legal reforms are poised to fundamentally alter their scope and enforceability in the context of discrimination and harassment.
NDAs have historically been used as a crucial way of maintaining corporate confidentiality and protecting intellectual property and trade secrets. They are routinely used throughout the entire employment lifecycle, from hiring through ongoing employment and extending to an employee’s exit. Nonetheless, substantial legislative changes are set to limit their scope significantly.
How are legislative changes reshaping NDAs?
The Government is set to ban the use of controversial NDAs where workers have complained about workplace harassment or discrimination. This proposal is part of the Employment Rights Bill. If enacted, new rules will make confidentiality clauses in settlement agreements (or other agreements) void, to the extent that they attempt to prevent individuals from discussing allegations of or disclosing information about harassment or discrimination. The rules also extend to the employer’s response to the allegations.
There will be limited circumstances where NDAs can still be used in relation to harassment and discrimination complaints, known as “excepted agreements”. Future regulations are expected to define an “excepted agreement” narrowly, allowing such NDAs only under specific conditions -most notably, when a worker actively requests one.
There is currently no information about when these NDA proposals will be implemented. Although the Government published a roadmap in July 2025 outlining the phased implementation of the Employment Rights Bill, the NDA proposals were made after the roadmap’s publication.
The Victims and Prisoners Act 2024
By contrast, under section 17 of the Victims and Prisoners Act 2024 (“the Act”), any NDAs entered into on or after 1 October 2025 will be unenforceable against individuals who are, or who reasonably believe themselves to be, victims of crime – specifically when they disclose information about relevant conduct to certain parties and for clearly defined purposes.
The Act protects “permitted disclosures” made by victims to:
- Law enforcement agencies and investigative authorities
- Qualified legal professionals
- Regulated professionals, including members of the healthcare sector
- Registered victim support organisations
- Regulatory or supervisory bodies
- Authorised representatives
- Immediate family members, specifically being a victim’s child, parent, or partner.
The Act adopts an inclusive definition of “victim.” Under section 1, a victim is anyone who has suffered harm as a direct result of criminal conduct in England and Wales, or who reasonably believes they are a victim. Notably, this definition extends to individuals who have witnessed criminal conduct and experienced harm as a result.
“Harm” is defined broadly to include physical, mental, or emotional suffering, as well as economic loss. Importantly, there is no requirement for the offence to have been officially reported, nor must there be a charge or conviction for someone to be recognised as a victim under the Act.
What steps should organisations take?
· Implement a clear anti-harassment policy if you don’t already have one, and ensure this includes an effective complaints procedure.
· Provide training to workers and managers on harassment and discrimination.
· Foster an inclusive culture in the workplace.
· Review contract templates, especially NDAs, but also contracts of employment and settlement agreements to ensure they align with the latest legal standards.
· As well as the above, and in relation to the new Act, set out clearly the circumstances when disclosures are permitted in NDAs. This will eliminate potential ambiguities regarding parties’ rights and obligations. By doing so, businesses can safeguard transparency and compliance in a rapidly evolving environment.
Conclusion
The introduction of these legislative reforms is another step toward prioritising individual rights over the broad use of confidentiality clauses. For employers, this means taking a proactive approach to ensure alignment with new transparency-focused standards.
While NDAs still serve a valid purpose in protecting legitimate business interests, their use in cases of harassment or discrimination is now subject to stricter scrutiny. That scrutiny will be even greater when the NDA provisions in the Employment Rights Bill come into force.
Hannah Waterworth
Hannah Waterworth is an employment solicitor in Blake Morgan’s Employment, Pensions, Benefits and Immigration team.
