The UK Government has opened a 12-week consultation on the future use of non-disclosure agreements in workplace harassment and discrimination cases.
The consultation closes on 8 July 2026, and forms part of the wider implementation framework for the Employment Rights Act 2025, which introduces a statutory restriction on the enforceability of confidentiality clauses in this context.
The consultation is focused on defining the conditions under which NDAs may continue to operate in limited circumstances once the statutory provisions are brought into force, with implementation anticipated in 2027.
Position under the Employment Rights Act 2025
The Act establishes that contractual terms which prevent a worker from disclosing information about harassment or discrimination will be void in most circumstances. This applies to provisions in employment contracts, settlement agreements and related arrangements where they seek to restrict such disclosures.
The restriction is not retrospective and does not affect NDAs already in place. It also does not apply to confidentiality provisions that protect commercial information, trade secrets or other legitimate business interests unrelated to workplace misconduct.
Defining “excepted agreements” for NDA enforceability
The legislation includes a carve-out for “excepted agreements”, under which confidentiality provisions may remain enforceable if specific statutory conditions are satisfied. The consultation is focused on defining those conditions in detail.
This marks a shift in approach. Enforceability will depend on whether the agreement meets prescribed criteria rather than on general contractual principles alone. The consultation therefore concentrates on the evidential and procedural safeguards required to support valid use of NDAs in this area.
Proposed statutory conditions for valid confidentiality clauses
The consultation sets out a series of proposed conditions that would need to be met before an NDA can lawfully restrict disclosures relating to harassment or discrimination.
- Confidentiality would only apply to disclosures about incidents that have already occurred, excluding future conduct from its scope.
- Independent legal advice may be required in all cases, extending beyond settlement agreements to other forms of arrangement.
- Workers may need to provide written confirmation that they have chosen to enter into the agreement following receipt of legal advice.
- A cooling-off period, provisionally 14 days, is under consideration to allow withdrawal from the agreement or from the confidentiality provisions.
- NDAs would need to be documented in writing and presented in an accessible format.
- Time limits on confidentiality may be introduced, either agreed between the parties or imposed by statute.
These proposals indicate a more prescriptive regime in which confidentiality provisions are subject to defined statutory safeguards.
Preserved disclosure rights despite confidentiality provisions
The consultation proposes that certain disclosures should remain protected even where an NDA qualifies as an excepted agreement. Workers would retain the ability to disclose information to specified individuals and bodies without breaching confidentiality obligations.
- Legal advisers and regulated professionals
- Regulatory authorities and law enforcement
- Medical practitioners and support services
- Trade union representatives
- Advisory bodies such as Acas
- Close family members
This approach is intended to preserve access to advice, reporting channels and support mechanisms irrespective of any confidentiality agreement.
Extension of protection beyond employees and workers
The current statutory restriction applies to employees and workers. The consultation seeks views on whether protection should be extended to a wider group of individuals operating within the workplace.
Those under consideration include agency workers, the self-employed, secondees and individuals undertaking work experience. Any extension would broaden the scope of the regime and require employers to apply the same standards across a more diverse workforce population.
Employer risk exposure and settlement practice implications
There is no immediate change to current practice. However, the direction of policy indicates that reliance on NDAs in harassment and discrimination cases will be significantly restricted once the new framework is implemented.
Employers are likely to face increased scrutiny where confidentiality provisions are used. Enforceability will depend on demonstrable compliance with statutory conditions, including evidence of legal advice and informed consent.
Settlement processes may become more protracted. The introduction of a cooling-off period would delay finality and may affect the timing of claim resolution, particularly in tribunal settlements. The scope of any withdrawal right will be a key operational issue, especially if it extends beyond confidentiality provisions to the agreement as a whole.
Consultation timeline and anticipated implementation
The consultation will close on 8 July 2026. The Government will then consider responses before finalising regulations to define excepted agreements and associated requirements. Implementation is expected in 2027, although no fixed commencement date has been confirmed.
Employers should monitor developments and prepare for a more regulated approach to confidentiality in workplace misconduct cases.
View the government consultation details here >
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
