Employment Rights Act: Preparing for change: Government publishes consultation on regulation of non-disclosure agreements

At a glance

• The government has launched a consultation on regulations to restrict the use of non‑disclosure agreements (NDAs) in cases of workplace harassment and discrimination, closing on 8 July 2026.
• The reforms flow from the Employment Rights Act 2025 (ERA 2025), which will render NDAs void where they prevent workers from speaking about harassment, discrimination or an employer’s response, subject to limited exceptions.
• Regulations will define 'excepted agreements' in which confidentiality may still apply, including requirements for independent legal advice, written and informed worker consent, and a cooling‑off period.
• Even where an NDA is permitted, workers will retain rights to make disclosures to specified individuals and bodies such as regulators, lawyers, trade union representatives and support services.
• The measures are expected to take effect in 2027 and will not apply retrospectively to existing agreements.

The recent flurry of activity on the employment law reforms being introduced under the Employment Rights Act 2025 continues today with the publication of a new consultation on regulations to prevent the use of non-disclosure agreements in cases of workplace harassment or discrimination. The consultation closes on 8 July 2026.

This is the latest step in the government’s commitment to addressing the imbalance of power between employers and workers and the reported improper use of non-disclosure agreements by some employers to silence workers who have experienced harassment and discrimination in the workplace.

The decision to make NDAs void in certain circumstances has already been set out in the ERA 2025. It inserts a new provision (section 202A) into the Employment Rights Act 1996 to achieve this aim.

Although not yet in force, essentially the new clause will make invalid any provision in an agreement between an employer and a worker which purports to prevent the worker from making an allegation of, or a disclosure of information relating to (1) harassment or discrimination; or (2) an employer’s response to the harassment or discrimination, or allegation or disclosure. Section 202A sets out what harassment or discrimination is relevant for these purposes.

Within section 202A, however, there is a carve out for ‘excepted agreements’ which must satisfy certain conditions set out in regulations. In recognition of the fact that, in some limited circumstances involving discrimination and harassment, it may be appropriate to allow an NDA to stand, these excepted agreements will not be void.

This consultation paper seeks feedback on the new regulations. It invites views on the proposed criteria for an excepted agreement, and the types of individuals or bodies that workers with excepted agreements can still speak to, irrespective of what their agreement says.

In the meantime, the government has confirmed that the new rules will not apply retrospectively to existing agreements.

The key proposals being consulted on are:

Criteria

• Similar to the existing regime for settlement agreements, a worker will need to receive written independent advice before entering into an excepted agreement. The advice will need to cover the terms, effect and legal limitations of the NDA. The agreement must name the adviser, and the adviser will have to have indemnity insurance. Employers will not be statutorily required to pay for the employee’s advice.
• Workers will need to express their preference to enter into an excepted agreement in writing to their employer, following the receipt of independent advice. This is intended to show the worker’s clearly stated, informed consent to the agreement. There will not be a prescribed style or form of expressing this preference but the independent adviser might suggest the best way to provide this preference eg in an email or a letter. The government also seeks views on whether an employer should be allowed to actively suggest that a worker enters into an excepted (ie confidential) agreement.
• There will be a cooling off period of 14 days following the signing of an excepted agreement, during which the worker can withdraw without penalty. The government seeks views on whether the cooling off period should only apply to the confidentiality clauses of any wider settlement agreement. It also seeks views on whether a worker could waive the cooling off period, or whether a shorter cooling off period may be appropriate.
• A written copy of the excepted agreement should be provided to all parties in a format accessible to the parties. The government seeks views on whether there should be a statutory requirement for the agreement to be written in plain, standard language.
• An expected agreement can only be entered into where it would prevent a worker from speaking out about an incidence of harassment or discrimination which has already taken place. It cannot, therefore, be entered into to prevent a worker from speaking our about harassment or discrimination that may occur in the future.
• The government is also seeking views on whether an excepted agreement should be time-limited (to prevent long-term secrecy) ie allowing employers and workers to agree how long the confidentiality obligations will continue for, or setting a statutory maximum period of time after which the confidentiality obligations in the agreement end.

Permitted disclosures

• Even where a worker has entered into an excepted agreement, they will be able to make otherwise confidential disclosures to certain groups or individuals specified in the regulations. These are proposed to include persons with law enforcement functions; qualified lawyers; persons entitled to practise in a regulated profession; tax advisers; individuals or organisation that provide a service to support victims; a regulatory body; an individual or an organisation that provides services for the purpose of advising individuals on their employment rights, conciliation, arbitration and mediation as it relates to settlements; a trade union representative accompanying workers in grievance and disciplinary cases or a trade union equality representative or a trade union representative authorised to give advice on settlement agreements; and close family members.

Non-workers

• The consultation also seeks views on whether the new rules should apply in future to individuals who are not a worker of the employer eg self-employed individuals, agency workers, seconded workers, those on work experience placements etc.

Until now, there has been no clear timeframe for when these new restrictions on NDAs will take effect or when the new supporting regulations will come into force. However, a press release issued alongside the consultation paper indicates that they will be implemented in 2027.

It is to be hoped, therefore, that the government publishes a speedy response to the consultation once the 12-week consultation period closes so that employers are clear, well in advance, what the new obligations mean in practice.

In the meantime, employers should review the existing terms of settlement agreements, contracts of employment and any other documents imposing confidentiality obligations and identify where changes might be required. NB NDAs protecting confidential information unrelated to discrimination or harassment, such as trade secrets and sensitive commercial information, are not impacted by these reforms.