Preventing misuse of Non-disclosure agreements: combating "a culture of silence and impunity"

On 15 April 2026 the government issued a consultation on regulations to prevent the misuse of Non-disclosure agreements (NDAs) in cases of workplace harassment or discrimination. The consultation closes on 8 July 2026 and the measures are expected to come in sometime next year.
 

What's the aim?

The Employment Rights Act 2025 (the Act) states that any provision in an agreement preventing a worker from making allegations or disclosures about harassment or discrimination will be void. The foreword to the consultation points out that the measure aims to combat "a culture of silence and impunity".

An agreement will include employment contracts, settlement agreements and COT3 agreements conciliated via Acas.

An "excepted agreement" i.e. an agreement that meets conditions to be set in regulations, will not be void.

What are the conditions for an excepted agreement?

The government proposes that before entering into an excepted agreement the worker should receive independent legal advice in writing on the agreement's terms, effect and legal implications. The worker will have to give their employer their written consent to entering into the agreement.

The consultation also proposes the inclusion of a "cooling off period". This means that an excepted agreement will be required to include an explicit right for the worker to withdraw from the agreement without penalty. The current "cooling off period" proposed is 14 calendar days from the agreement being entered into, but the government is also considering alternative options.

The agreement should be provided to all parties in writing, and it will only be possible to enter into the agreement if the incident of harassment or discrimination has already (or is alleged to have) taken place. An excepted agreement may stipulate a time-limit for which confidentiality obligations can be in place; regulations could require a maximum time limit (for instance a period of no more than 3 years).

Permitted disclosures

Where a worker has signed an excepted agreement, the government proposes that they should still be able to disclose harassment and discrimination to certain people or bodies; these include regulatory bodies, medical professionals, social workers, Acas, trade union representatives and qualified lawyers, as well as close family members.

The consultation seeks views on whether prospective employers should be included within the list of those to whom disclosures are permitted. It points out that this may be helpful where an NDA limits a worker's ability to explain gaps in employment or reasons for leaving a previous role, although it notes that as the future employer wouldn't be bound by an excepted agreement this could make the existing employer less inclined to enter into one given the possibility of future disclosure.

Potential extension to other individuals

The NDA provisions will only apply to agreements between employers and their workers, but the government is considering whether in the future these should be extended to cover other individuals.  

The consultation asks if they should cover individuals working for someone who is not their employer (for example agency workers and those on secondment), and other individuals in employment-type arrangements, such as work-experience placements, nurses and midwives in training, and certain NHS workers.

Practical impact?

The new provisions on preventing the misuse of NDAs may reduce an employer's appetite to enter settlement discussions without confidentiality guarantees, potentially leading to increased litigation of matters both parties might prefer to settle confidentially. The fact that prospective employers may be included within the list of those to whom disclosures are permitted may act as an additional disincentive.

The concept of a mandatory cooling off period is also potentially problematic when it comes to last minute settlement negotiations before a COT3 is entered into to waive an employment tribunal claim.

We will have to wait until the detail of these NDA provisions is ironed out before considering the implications of their practical application. As the new measures aren't due to come in until 2027 there is some time yet for employers to get used to the concept of an excepted agreement and how it will work in practice.