Consultation on limiting the use of non-disclosure agreements in the UK

The Government is consulting on the content of regulations aimed at limiting the use of non-disclosure agreements ('NDAs') in cases of workplace harassment or discrimination.  

The Employment Rights Act 2025 contains a range of measures further restricting the use of NDAs by employers. These measures are not expected to come into force until sometime in 2027, but once in force, subject to certain exceptions, they will make any provision in an agreement between an employer and a worker void to the extent that it prevents the worker from making either an allegation of, or a disclosure of information relating to harassment or discrimination or the employer's response to it. This includes employment contracts, settlement agreements and COT3s, not just standalone NDAs.  

Harassment and discrimination will be in scope if it is perpetrated by the employer or one of the employer's workers, or the victim is a worker of the employer. 

The Government recognises that NDAs have a legitimate function in the employment context and therefore proposes that certain agreements should be excepted from the general rule. On 15 April 2026 it published a consultation paper on the circumstances in which NDAs should be permitted and the safeguards required for an agreement to be 'excepted'. 

The proposals set out for comment in the consultation paper include the following:

•  The worker should receive independent advice in writing on the terms and effect and legal limitations of the proposed confidentiality obligations. Employers will not be required to pay for this (but in practice might choose to do so as they currently do with settlement agreements). The adviser must be named and have indemnity insurance.  Where a COT3 is involved, the Government is considering whether Acas conciliators could act as independent advisers for this purpose.
• To avoid the risk of coercion, the worker should express a preference to their employer in writing to enter into an excepted agreement, after receiving advice.  One of the questions is whether an employer should be able to suggest confidentiality provisions to the employee at all.  If not, this will significantly impact the number of situations where employers can use NDAs.
• There should be a 14-day 'cooling-off period' once the agreement has been entered into, although it might be permissible for the worker to waive this in certain circumstances, such as an agreement reached shortly before an employment tribunal hearing commences, or during the course of a hearing.
• A copy of the agreement should be provided to all parties in an accessible format.
• It should not be permissible to prevent a worker speaking out about future discrimination or harassment claims via an NDA, which is a measure seemingly aimed at the practice of using 'pre-dispute' NDAs in employment contracts to prevent workers from speaking out against any potential future instances of discrimination and harassment. The Government proposes that any such provision would be void.

The Government is also asking for views on whether it would be helpful for worker protection for NDAs to be time limited. It is also considering putting on a statutory footing a list of persons to whom disclosures would be permitted irrespective of an NDA.

Comment

If adopted, some of these proposals would introduce considerable complexity (and further costs) into the process of settling employment claims involving NDAs even where both sides consider that an NDA is sensible and desirable. In particular, it is difficult to see how a 'cooling-off period' would work in cases where there are external factors driving the settlement timetable, such as regulatory requirements concerning departure announcements, or complex financial calculations. It is not clear how this would work if the NDA is part of a broader settlement agreement as this creates an obvious commercial risk.  One of the benefits to an NDA is that it gives both parties certainty and can help to settle litigation which could be costly (not to mention stressful) for both sides.  What happens if an agreement is reached within 14 days of a trial is a key question that needs to be resolved.  

Given the vast amount of guidance in relation to NDAs in recent years (eg from the SRA, Acas, Ministry of Justice and the ECHR) and the various recent legislative changes (eg the Higher Education (Freedom of Speech) Act 2023, the Victims and Prisoners Act 2024 and the Employment Rights Act 2025), now is a good time to ensure that any template settlement agreements and NDAs are compliant with the current requirements as this is a key area of interest for the Government and regulators. 

The consultation is open until 11.59pm on 8 July 2026. If you have any views that you would like the Withers employment or reputation management teams to express on your behalf, please don't hesitate to get in touch. If you would prefer to respond directly you can do so using the link above.  

This article is authored by Andrew Fremlin-Key, Partner in the UK media and reputation management team and Christina Morton, senior knowledge lawyer in the UK employment team.