Banning NDAs in Higher Education around sexual misconduct, bullying & harassment

3 February 2025

NDAs are always going to be a hot topic in employment law and in the wider world. NDAs have benefits for victims of sexual misconduct, bullying and harassment, especially in the context of preserving future employability and ensuring confidentiality around what has happened in the past. Where they are less acceptable is where they cloak misconduct that needs to be eradicated. NDAs allow multiple offences by the same perpetrators to go largely unchecked. It is no surprise therefore that in the higher education sector, where public money is spent on settlements, action has been taken to do something about this.

Section 1 of the Higher Education (Freedom of Speech) Act 2023 (the Act) was due to come into force on 1 August 2024. This would have prohibited English higher education providers from entering into non-disclosure agreements (NDAs) with staff, members, students or visiting speakers in relation to a complaint of sexual abuse, sexual harassment, sexual misconduct, or other bullying or harassment.

On 25 July 2024, the government put the ban on hold, stating that it wished to consider options in relation to the Act. It expressed concern that the Act was not fit for purpose and that some of its provisions were disproportionate, burdensome and damaging to student welfare, while not addressing hate speech.

In a debate in the House of Commons on 15 January 2025, Bridget Phillipson MP, Secretary of State for Education, confirmed that, having carried out extensive engagement with staff, students and universities, the government has decided to bring into force some of the Act’s key elements. This includes the ban on NDAs.

The government will however amend or repeal other provisions in the Act which it does not believe to be proportionate and necessary. The devil will be in the detail.

Ms Phillipson confirmed that she will produce a policy paper to set out in more detail the government’s proposals in relation to the Act. She did not provide any timeframe for publication of the policy paper, nor for the implementation of the ban on NDAs.

One to keep an eye out for.

Sexual Harrassment

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