Government Consultation: Preventing the Misuse of non-disclosure agreements

Government Consultation: Preventing the Misuse of non-disclosure agreements in Harassment and Discrimination Cases

Overview

In April the Government launched a public consultation on proposals to prevent the misuse of non‑disclosure agreements (NDAs) in cases involving workplace harassment and discrimination.

While NDAs continue to have legitimate uses—such as protecting trade secrets or confidential business information—they have been widely criticised where they are used to silence individuals who have experienced harassment, discrimination, or sexual misconduct at work.

These proposals form part of a wider package of reforms under the Employment Rights Act 2025, aimed at improving workplace transparency and accountability.

Key Legal Change: Voiding NDAs in Harassment and Discrimination Cases

The Employment Rights Act 2025 introduces a new measure which will void any provision in an agreement between an employer and a worker (including contracts of employment and settlement agreements) that prevents the worker from speaking out about relevant harassment or discrimination.

This means that confidentiality clauses will no longer be enforceable where they seek to restrict disclosure of these matters, subject to limited exceptions.

What is “Relevant Harassment and Discrimination”?

“Relevant harassment and discrimination” is aligned with protections under the Equality Act 2010 and includes:

• Direct discrimination
• Indirect discrimination
• Disability discrimination, including failures to make reasonable adjustments
• Gender reassignment discrimination
• Pregnancy and maternity discrimination
• Harassment, including sexual harassment

Consultation Focus Areas

The consultation seeks views on three main areas:

1. When NDAs Can Still Be Used (“Excepted Agreements”)

The Government is consulting on the conditions that must be met for an NDA to still be valid in harassment and discrimination cases. These are referred to as excepted agreements.

Proposals include:

• A requirement for the worker to receive independent legal advice before entering into the agreement
• Clear safeguards to ensure individuals understand their rights and the limits of confidentiality

2. Who Workers Can Speak To (“Permitted Disclosures”)

Even where an excepted agreement applies, the consultation proposes that workers must still be free to speak to certain individuals or bodies about the harassment or discrimination, regardless of what the NDA says.

Proposed permitted disclosures include:

• A qualified legal adviser
• Relevant regulatory or oversight bodies
• Close family members

The Government is also seeking views on whether prospective employers should be added to this list.

3. Who the Reforms Should Apply To

The consultation explores whether protections should extend beyond the current definitions of “employee” and “worker” under the Employment Rights Act 1996.

This may include:

• Agency workers
• Self‑employed individuals
• Individuals undertaking work experience or placements

This is particularly relevant for sectors such as education, where non‑standard working arrangements are common.

Timing and Next Steps

• Consultation closes: 11.59 pm on 8 July 2026
• Government response expected: After the consultation period
• Likely implementation: 2027

Why This Matters for Education Employers

These reforms are intended to balance:

• The legitimate and limited use of confidentiality provisions; and
• The need to protect individuals from being silenced when raising serious workplace concerns.

For schools, trusts and other employers, this signals a continued shift towards greater transparency, more careful drafting of settlement agreements, and an increased focus on culture, safeguarding and accountability

Legal Connect and HR Connect will update you once further information is released.

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