In April 2026, the UK government launched a consultation to address the misuse of non‑disclosure agreements (NDAs) in cases of workplace harassment and discrimination, as part of its wider “Make Work Pay” agenda.
While NDAs are commonly used in settlement agreements for legitimate commercial or confidentiality reasons, concerns have grown about their use in relation to reports of workplace harassment and discrimination. In response, the Government has included provisions in the Employment Rights Act 2025 (ERA) which, when in force in 2027, will void any provisions in an agreement that seek to prevent a worker from making allegations of, or disclosures relating to, harassment or discrimination and/ or the employer’s response to that harassment or discrimination. The current consultation seeks views on how these provisions should operate in practice.
Excepted agreements
Under the ERA, NDAs (or any relevant sections of them) that seek to prevent disclosures relating to harassment or discrimination would be void unless they qualify as an “excepted agreement”. What this means is not set out in the legislation, and the current consultation seeks views on what conditions should apply.
The government propose in the consultation that any excepted agreement would need to comply with the following conditions:
- that the worker has received independent advice in writing on the terms and effect and legal limitations of the proposed confidentiality obligations from an independent adviser;
- that the worker should express their preference to enter into the agreement, following the receipt of independent advice. This would be expressed to their employer in writing.
- that the worker has the right to withdraw from the agreement without penalty within 14 calendar days of the agreement being entered into (i.e. a “cooling off period”).
- that the excepted agreement should be provided to all parties in writing, and in a format accessible to the parties (worker and employer), including by any party with a disability.
- that it is only possible to enter into an excepted agreement if the incident of relevant harassment or discrimination has (or is alleged to have) already taken place.
Even where these conditions are met, it is proposed that certain disclosures would remain unrestricted, including reports to the police, regulators, legal, tax and medical advisers, victim support services, and protected disclosures under the whistleblowing framework. The consultation also considers whether disclosures to trade union representatives, close family members and prospective employers should also be unrestricted.
The consultation considers the issue of whether the employer should be permitted to suggest an NDA and whether there should be a time limit on any excepted agreement.
Who would be protected?
A key issue is the scope of this protection. While the current framework focuses on employees and statutory “workers”, the government is consulting on extending protections to wider groups, including agency workers, secondees and certain self‑employed individuals. The proposals could also apply to witnesses of harassment or discrimination.
Practical implications
When these changes are implemented, these reforms are likely to significantly alter the use of NDAs in settlement agreements where harassment and discrimination has been alleged.
The consultation closes on 8 July 2026, with reforms expected to take effect some time in 2027. Employers, with experience of NDAs are encouraged to engage with the consultation to help shape a framework that works in practice.
