The Government launched its consultation on regulations to prevent the misuse of non-disclosure agreements (NDAs) in cases of workplace harassment or discrimination on 15 April 2016.
The consultation closes on 8 July 2026.
The Employment Rights Act 2025 introduced a new section 202A into the Employment Rights Act 1996. This section is not yet in force but is expected some time during 2027.
The new provision will render void any provision in an agreement between an employer and a worker which would prevent the worker from making an allegation of or a disclosure relating to harassment or discrimination or any response from an employer to such an allegation. There will be exceptions to this new rule in the form of “excepted agreements” which we do not have the full details of as yet.
NDAs in England & Wales are most commonly found in settlement agreements (formerly compromise agreements) which are routinely concluded between employees and employers to settle legal claims and agree the terms upon which the employee will not pursue litigation. Commonly settlement agreements include confidentiality provisions to protect employers but employees can also derive a benefit from such provisions.
The details of how this new provision will be work are yet to be finalised. The consultation seeks views on the following items.
What conditions should be imposed for an “excepted agreement” to come into being?
The Government proposes that workers must receive independent legal advice (this is already required) but that the employee has expressed a preference for there to be an NDA. Other conditions include a 14-day cooling off period, a written copy of the agreement must be provided to all parties and the NDA can only relate to conduct that has already taken place.
The Government is also considering whether the NDA should be time-limited.
The Government is also considering the categories of people to whom disclosures will be permitted after an NDA has been agreed. For example, lawyers, victim support services, close family.
Finally, the consultation seeks views on whether the protection should be extended in future to other categories of individual who do not fit within the statutory definition of worker, for example those on work placement experience, midwives in training and certain NHS workers. Additionally, the Government is considering how the self-employed might be protected.
Full details of the consultation can be found online here.
This blog was written by Beatrice Young, Solicitor at didlaw.
