Non-disclosure agreements (NDAs): Government consults on new restrictions under the Employment Rights Act 2025

By James Chadwick, Senior Lawyer

The Government has completed a consultation on regulations designed to prevent the misuse of non-disclosure agreements (NDAs) which we better know as confidentiality clauses in cases involving workplace harassment and discrimination. The consultation forms part of the wider Make Work Pay programme and follows the introduction of new protections in the Employment Rights Act 2025 (ERA 2025), which will restrict employers' ability to use confidentiality clauses to silence workers who experience or report unlawful treatment. 

Under section 24 of the ERA 2025, a new provision will be inserted into the Employment Rights Act 1996 making any confidentiality clause unenforceable insofar as it prevents a worker from making allegations or disclosures relating to workplace harassment or discrimination or discussing how an employer responded to those concerns. Importantly, the legislation will not ban confidentiality clauses entirely. The Government has made clear that confidentiality clauses will remain available where they are used for legitimate purposes, such as protecting commercially sensitive information, trade secrets and confidential business data. 

The consultation sought views on the circumstances in which confidentiality clauses may still be lawfully used in harassment and discrimination cases through what are being termed "excepted agreements". Current proposals include requiring workers to obtain independent legal advice before signing, confirming their consent to the agreement in writing, and introducing a statutory 14-day cooling-off period during which agreement can be withdrawn. The Government is also considering whether confidentiality clauses in agreements should be time limited and whether additional safeguards are needed to ensure workers fully understand their rights before entering into any agreement. 

A further part of the consultation sought views on "permitted disclosures" and the categories of people or organisations to whom workers should still be able to speak to, even where a valid confidentiality clause exists. Proposals include allowing disclosures to legal advisers, medical professionals, law enforcement bodies, trade union representatives and support services. The Government is also considering extending the protections beyond traditional employees and workers to include some self-employed individuals, freelancers, agency workers as well as nurses and midwives in training amongst others.

The reforms are intended to address long-standing concerns that some employers have used confidentiality clauses to discourage victims of harassment and discrimination from speaking out, allowing harmful workplace cultures to persist unchecked. Ministers have argued that the changes will help shift workplace culture by increasing transparency and accountability while preserving the legitimate use of confidentiality clauses where appropriate. 

ELR takeaway: The proposed reforms represent a new focus on the right of individuals not to be bound by confidentiality clauses. Once implemented, employers will be limited in their ability to rely on confidentiality clauses not just in respect of harassment but all forms of discrimination. The measures to limit the use of confidentiality clauses in contracts and settlement agreements are due to come in 2027, but good employers should apply this approach now. Trade unions may wish to monitor the outcome of the consultation closely and consider how the new rules may support members who wish to raise concerns or challenge inappropriate workplace behaviour without fear of being silenced by confidentiality provisions.  Once in force the measures will apply only to agreements entered into after the legislation takes effect.