Important changes proposed for Non-Disclosure Agreements

Relevant harassment or discrimination

The definition of relevant harassment or discrimination covers various types of conduct prohibited under the Equality Act 2010. Harassment is widely defined and discrimination includes direct and indirect discrimination, discrimination arising from disability, gender reassignment discrimination, pregnancy and maternity discrimination and a failure to make reasonable adjustments in disability cases.

Conditions for an excepted agreement

Section 24 of the ERA introduced a new section 202A into the Employment Rights Act 1996 which renders void any provisions in an NDA which seek to prevent a worker from making a disclosure about relevant harassment or discrimination. The new law covers any confidentiality clause in an agreement between an employer and employee.

However, if certain conditions are met, an “excepted agreement” can be entered into under which an NDA would not be void. Views regarding the final form of these conditions are being sought as part of the consultation process but the current proposals are as follows:

• a worker must receive independent advice (in writing) on the terms, effect and legal limitations of the excepted agreement and its proposed confidentiality obligations;
• a worker must express their desire (in writing) to enter into the excepted agreement following independent advice;
• a cooling off period should be included within the excepted agreement (14 days has been proposed);
• a written copy of the excepted agreement is required to be provided to all parties; and
• an excepted agreement can only be entered into where the incident (or the alleged incident) of relevant harassment or discrimination has already occurred.

The Government is also seeking views regarding whether an excepted agreement should be limited in time.

Permitted disclosures

It is proposed that a worker should be able to make permitted disclosures and a non-exhaustive list of the individuals or groups to whom disclosure might be made is shown below:

• persons who have law enforcement functions (i.e. Police, Serious Fraud Office and Information Commissioner’s Office);
• qualified or foreign registered lawyers;
• tax advisors or persons entitled to practice a regulated profession;
• regulatory bodies; and
• close family members.

Conclusions

The move to prohibit NDAs in respect of workplace harassment and discrimination follows the ban on the use of NDAs in higher education and the restrictions placed on NDAs for the victims of crime. For more details see our previous article here: Reshaping confidentiality: the changing landscape of Non-Disclosure Agreements

Following the end of the consultation period on 8 July 2026, the Government will consider the feedback received to inform their view of the final wording of the new section 202A.

Implementation of the new law is due some time in 2027 although no specific date has yet been published.

A link to the consultation paper can be found here: Government’s consultation paper

It is also noteworthy that, as part of its stated commitment to protect workers speaking up about wrongdoing, the Government has said it will consult over changes to the whistleblowing framework in the summer of 2026.