In brief
The Government has launched a consultation on proposed regulations that, together with new section 202A of the Employment Rights Act 1996 (ERA 1996), will restrict the use of non disclosure agreements (NDAs) in cases of workplace harassment and discrimination.
The consultation focuses on:
- The conditions an NDA must meet to remain enforceable in harassment and discrimination cases (an “excepted agreement”);
- The individuals and bodies to whom disclosures must always be allowed; and
- Whether the new restrictions should later be extended beyond “workers” to other categories.
The consultation closes on 8 July 2026. The changes will apply to any agreements entered into after section 202A comes into force – they will not apply retrospectively.
In more detail
Background
NDAs are still commonly used but they have been subject to significant attention and legal reform in recent years. This includes the Solicitors Regulation Authority's (SRA) warning notice on the use of NDAs, updated in August 2024, and section 17 of the Victims and Prisoners Act 2024 (VPA 2024). Section 17 came into force on 1 October 2025 and renders NDAs void if they prevent victims or direct witnesses of crime from making certain disclosures to specified bodies for specified purposes. The Government has already stated, however, that it will repeal section 17 and replace it with a broader protection allowing victims and direct witnesses of crime to disclose information about the criminal conduct to anyone and for any purpose.
The Employment Rights Act 2025 adds to the NDA reform by introducing a new section 202A to the ERA 1996, which will void any provision in a non “excepted agreement” between an employer and a worker insofar as it prevents the worker from disclosing:
- “Relevant” harassment or discrimination; or
- The employer’s response to such matters or to allegations relating to them.
The consultation includes the following proposals.
Relevant harassment and discrimination
“Harassment and discrimination” refers to existing categories of prohibited conduct defined in the Equality Act 2010. This includes direct and indirect discrimination; discrimination arising from disability, breach of the duty to make reasonable adjustments; gender reassignment discrimination; pregnancy and maternity discrimination; and harassment, including sexual harassment.
For the discrimination or harassment to be “relevant”:
- It must be carried out (or alleged to have been carried out) by the employer or another worker of the employer; or
- The victim (or alleged victim) of the discrimination or harassment must be the worker that entered into the NDA or their work colleague (this would capture where a worker is harassed by the employer's client for example).
Excepted agreements
An NDA will only remain enforceable if it is or is contained in an “excepted agreement”. The consultation proposes a package of conditions for an agreement to be “excepted”, including:
- Independent advice - The worker must receive independent advice (in writing) on:
- The terms and effect of the NDA; and
- Its legal limitations (e.g., whistleblowing, reporting crimes, and permitted disclosures).
The Government is considering whether ACAS conciliators should count as independent advisers for COT3 agreements.
The Government does not propose to require employers to cover the cost of the independent advice. It is anticipated, however, that it may become common practice for employers to contribute to the cost of such advice (given that many NDAs will form part of settlement agreements), similar to the approach taken in relation to the current requirements under section 203 of ERA 1996.
It is not proposed that the independent advice should be in a prescribed form.
- Worker’s written consent – Following receipt of independent advice, the worker must actively confirm in writing that it is their preference to enter into the NDA.
The Government does not propose prescribing the style and form of a worker's written consent. It is considering whether to prevent employers from suggesting confidentiality or requesting that a worker enter into an excepted agreement, though it recognises the potential unintended consequences of that approach.
- Cooling off period – The worker is entitled to a 14-day cooling off period, during which the worker can withdraw without penalty.
As NDAs often form part of a broader settlement agreement, it would likely mean that if a worker decides to withdraw from an excepted agreement, they would also withdraw from the entire settlement agreement.
The consultation recognises the practical challenges of a cooling-off period and seeks views on whether this cooling-off period should be shorter, waivable, or limited only to confidentiality obligations, and also proposes alternatives such as a “review period” prior to signing.
- Written and accessible agreement - A written copy of the NDA must be provided to all parties in an accessible format, including any party with a disability.
The Government is also consulting on whether NDAs should be required (or encouraged via guidance – its preference) to be in plain English.
- Past conduct only - The incident of relevant harassment or discrimination must have (or must be alleged to have) already occurred.
Therefore, “pre dispute” NDAs to prevent workers from speaking out against future conduct would be unenforceable.
- Possible time limit - The Government is exploring whether confidentiality obligations should be time limited and, if so, whether a maximum duration should be imposed.
These conditions would apply across both private settlement agreements and ACAS facilitated COT3 agreements, despite their different legal frameworks.
Permitted disclosures
Even where a valid excepted agreement exists, the Government proposes that workers must be free to disclose information relating to the relevant harassment and discrimination to specified individuals and bodies, including:
- Law enforcement bodies;
- Qualified lawyers or registered foreign lawyers;
- Regulated professionals (e.g., doctors, social workers, etc.) or tax advisors;
- Victim support services (e.g., counsellors, independent sexual violence advisors, etc.);
- Regulatory bodies (e.g., SRA, General Medical Council, Equality and Human Rights Commission, etc.);
- Individuals or organisations providing advisory services relating to employment rights, conciliation, arbitration and mediation relating to settlements (e.g., ACAS);
- Trade union representatives;
- Those authorised to receive information on behalf of a person specified above (e.g., law firm receptionists); and
- Close family members (e.g., close relatives, children, parents and partners).
In addition, the parties could agree to specify within the NDA certain individuals who the worker can talk to over and above the "permitted disclosures" specified in regulations.
The consultation also considers whether disclosures should be allowed to prospective employers or those outside of the employment relationship, such as friends and wider family.
Application to other individuals beyond “workers”
Finally, the Government is seeking views on whether section 202A should later be extended to individuals who do not meet the statutory definition of “worker” in section 230(3) of the ERA 1996, including:
- Agency workers;
- Secondees;
- Work experience placements;
- Student nurses or midwives;
- Certain NHS practitioners (such as doctors, dentists, etc.) who operate as self-employed contractors; and
- Specific groups of self-employed individuals.
Any such extension is likely to be phased and subject to further consultation.
Further information
As outlined, the consultation covers a variety of considerations in relation to NDAs and it is clear that some proposals will have greater implications with respect to settlement strategies or dispute resolution dynamics for employers.
If you would like assistance reviewing your templates (NDA, employment contract or settlement agreement) and/or responding to the consultation in light of these proposals, please contact your usual Baker McKenzie contact.
Amie Ward, Trainee Solicitor, has contributed to this legal update.