While the updated implementation timetable for the Act does not confirm when the new rules on NDAs will take effect, we expect implementing legislation to take effect in 2027.
What are the government proposals on NDAs?
The Act introduced provisions that will render void any clause in an agreement between an employer and a worker insofar as it prevents the worker from speaking out about:
- “relevant harassment or discrimination” as defined in the legislation;
- their employer’s response to the relevant harassment or discrimination; or
- the making of an allegation of relevant harassment and discrimination.
The UK government is not, however, proposing an outright ban on NDAs relating to discrimination or harassment. This, in the UK government’s view, acknowledges that in some cases workers may want to maintain confidentiality. So, the Act provides for "excepted agreements" that will validly be able to limit disclosure by a worker about workplace harassment or discrimination, but we do not yet know what that will look like.
What does the consultation tell us?
The consultation on regulations to prevent the misuse of NDAs in cases of workplace harassment or discrimination seeks views on the proposed criteria for an "excepted agreement" and the types of individuals and bodies that workers with excepted agreements may still speak to. It also seeks feedback on whether the protection should be extended beyond workers.
In seeking views on a number of issues, the consultation sets out the government’s belief that there should be:
- a requirement for a worker to receive independent advice in writing on the terms, effect, and legal limitations of the proposed confidentiality obligations before entering into the excepted agreement. This largely mirrors the existing requirement to obtain independent advice on a settlement agreement. For the purposes of excepted agreements, the government proposes including Acas conciliators within the definition of independent adviser. This would be a significant departure from their current role as impartial facilitators of tribunal settlements via COT3 agreements
- following receipt of independent advice, a worker should set out their preference for entering into an excepted agreement in writing to the employer. This is an attempt to protect workers from being coerced
- a cooling-off period included in the excepted agreement, allowing a worker to withdraw without penalty within 14 calendar days of entering the agreement. Views are sought on whether the cooling-off period should be required only in respect of the confidentiality clauses in an excepted agreement, or the agreement as a whole. Although the UK government says it does not intend to provide for a worker to waive the cooling-off period, the consultation does seek views on this option. It also seeks views on whether the cooling-off period should be shorter. The UK government also does not think a review period (prior to agreeing to the NDA) is required in addition to a cooling-off period but also seeks views on that option
- a requirement for a written copy of the excepted agreement to be provided to all parties, in an accessible format where appropriate. Views are also sought on whether a requirement that the excepted agreement be written in plain English should be included in legislation; however, the UK government’s view on this issue is that it would be better suited to guidance
- a condition that workers should not be prevented from speaking out about harassment and discrimination that may occur in future. Excepted agreements could only be entered into if the incident has (or is alleged to have) already taken place
Views are also sought on whether an employer may suggest confidentiality and whether an excepted agreement should be time-limited, or subject to a maximum time limit as set out in regulations.
The UK government does not believe employers should be required to pay for the worker’s independent advice, albeit that is currently common practice for settlement agreements.
Permitted disclosures
The consultation also confirms the UK government’s belief that workers who have signed excepted agreements should still be able to make permitted disclosures to groups or individuals specified in regulations. Parties may also agree to disclosures being made to individuals over and above what is set out in regulations. The individuals or groups the UK government believes permitted disclosures should be made to are:
- any person who has law enforcement functions such as the police, HSE, FCA, ICO, and similar
- a qualified lawyer or registered foreign lawyer
- anyone entitled to practise a regulated profession such as a doctor or social worker, or a tax adviser
- an individual or organisation that provides victim support
- a regulatory body such as the General Medical Council, the Solicitors Regulation Authority, or the Equality and Human Rights Commission
- an individual or organisation that advises on employment rights, conciliation, arbitration, or mediation as it relates to excepted agreements, such as Acas officers
- a trade union representative accompanying workers in disciplinary and grievance cases, trade union equality representatives, or trade union representatives authorised to give advice on settlement agreements
- a person authorised to receive information on behalf of any of the above, such as a receptionist at a law firm
- close family members
The consultation also seeks views on whether prospective employers and wider family and friends should be included on this list. The UK government believes friends should not be included, however acknowledges that parties could still agree to a specified named friend as part of the settlement. The inclusion of friends may, in many employers’ eyes, render an excepted agreement ineffective.
Extension of protection beyond workers
The consultation also seeks views on extending the protection beyond the current statutory definition of "worker" in ERA 96, for example to volunteers. There are no specific proposals put forward on this beyond proposing a staggered approach to the extension. That means the initial implementation will only cover workers as currently defined.
What does this mean for employers?
If the government’s preferred proposals are included in the final regulations, then employers can expect the process of concluding an excepted agreement to be more onerous than is currently the case with settlement agreements. The cooling-off period will bring with it more uncertainty and, where settlement takes place shortly before a tribunal hearing is due to commence, there is the potential for hearings to be cancelled only for proceedings to subsequently recommence if the employee changes their mind.
Acknowledging the need for close family support for a worker who has been a victim of discrimination and harassment, employers will be relieved to see that the government does not support the inclusion of wider family and friends in the permitted disclosures list. However, if the policy behind the legislation, that NDAs will not routinely be entered into in cases of harassment and discrimination, is effective, then employers will usually have no control over whom the worker speaks to.
This is going to be quite a culture shift for employers when the legislation takes effect. It needs to be remembered, however, that the ban on the use of NDAs is, for the time being at least, limited to situations where harassment or discrimination has, or is alleged to have, occurred. Settlements relating to other types of claims will not be affected, nor will legitimate NDAs protecting, for example, commercially sensitive information or intellectual property.
The consultation is open until 8 July 2026.
