When will restrictions on NDAs in workplace harassment or discrimination cases not apply?

Ahead of these changes, the government has launched a consultation seeking views on the narrow circumstances in which such NDAs could still be enforceable. 

What will change?

The Employment Rights Act 2025 introduces new rules that make some NDA clauses unenforceable. NDAs are used to keep certain information private and are often included in settlement agreements. However, an NDA will not be valid if it tries to stop a worker from speaking about: 

• Relevant harassment or discrimination
• How the employer responded to relevant harassment or discrimination
• How the employer handled an allegation of relevant harassment or discrimination 

The Act will not ban all NDAs about workplace harassment or discrimination. Some NDAs will still be enforceable if they meet specific conditions. These will be known as ‘excepted agreements’.

The aim of these changes is to prevent employers from using NDAs to silence workers who want to speak about workplace harassment or discrimination. The reforms are targeted: they only affect NDAs that restrict disclosure of these issues, so NDAs can still be used for other legitimate purposes, such as protecting trade secrets or commercially sensitive information.

What is ‘relevant’ harassment or discrimination?

‘Relevant’ harassment or discrimination includes the following types under the Equality Act 2010: 

• Direct and indirect discrimination
• Discrimination arising from a disability
• Failure to make reasonable adjustments
• Gender reassignment discrimination
• Pregnancy and maternity discrimination
• Harassment, including sexual harassment

Harassment or discrimination will be ‘relevant’ where:

• it involves (or is alleged to involve) the employer or another worker; or
• the person who signed the NDA is the affected worker or a colleague. 

It will not, therefore, amount to ‘relevant’ harassment where a worker witnesses a client harassing another client and later signs an NDA with their employer about the incident. In that situation, the conduct does not involve the employer or a colleague, and the person affected is neither the worker nor a fellow worker. 

When will NDAs still be enforceable in discrimination or harassment cases?

Once the new rules come into force in 2027, you will not be able to use NDAs to prevent workers from speaking about relevant harassment or discrimination, except where the NDA qualifies as an 'excepted agreement'. 

The government recognises that NDAs in cases of harassment and discrimination may still have a role in some cases - for example, where a worker wants to maintain confidentiality as part of a settlement agreement to help them move on after a distressing experience.

To address this, the government's ‘Consultation on regulations to prevent the misuse of NDAs in cases of workplace harassment or discrimination’ seeks views on the conditions an NDA must meet to qualify as an ‘excepted agreement’. 

Proposed conditions for excepted agreements

The government proposes that an NDA will only be enforceable if the following conditions are met: 

• Independent advice: the worker must receive written advice from an independent adviser on the effect and legal implications of the NDA, including its limitations.
• Worker's informed choice: After receiving that advice, the worker must confirm in writing that they wish to enter into the agreement.  
• Cooling off period: the agreement must include a right for the worker to withdraw, without penalty, within 14 calendar days of signing.   
• Written and accessible format: the agreement must be in writing and provided in a format that is clear and accessible.
• Timing of the incident: the NDA can only relate to harassment or discrimination that has already occurred (or is alleged to have occurred). It cannot be used to cover future conduct. 

The government is consulting on whether these safeguards go far enough to prevent misuse while still allowing workers to choose confidentiality where appropriate. 

What else does the consultation cover?

The consultation also seeks views on who workers should still be able to speak to after entering into an excepted agreement. Currently, NDAs cannot prevent workers from:

• making protected disclosures (whistleblowing);
• reporting a crime to the police; or
• sharing information with certain individuals to access advice and support as victims of crime. 

The government proposes extending these protections for workers entering into excepted agreements so they can disclose information to a wider group, including: 

• those carrying out law enforcement functions
• qualified lawyers
• professionals in regulated occupations and tax advisers
• individuals or organisations providing support services to victims
• regulatory bodies
• trade union representatives supporting workers in grievances or disciplinaries
• close family members

The consultation also asks whether, in future, the new rules on NDAs in cases of harassment or discrimination should be expanded to cover a wider group of individuals, such as agency workers, secondees, those on work experience placements, and the self-employed. 

Next steps

The consultation closes at 11:59pm on 8 July 2026.

We will need to wait for the government's response to understand exactly how ‘excepted agreements' will operate in practice. In the meantime, there are some clear practical steps to consider.

Settlement agreements will need to be reviewed and updated. Many include confidentiality clauses, that would, under the new rules, go too far in cases involving relevant harassment or discrimination. The new rules will not apply retrospectively, so they will only affect agreements entered into once the new rules are in force. However, you should start preparing now so that the updated agreements are ready to use when the new rules take effect. 

More broadly, you should take this opportunity to review your overall approach to preventing discrimination and harassment. This goes beyond having a policy in place - you should be able to demonstrate that you are taking active, practical steps to create a safe and respectful working environment. This is particularly important given the changes coming into force in October 2026. From that point: 

• the duty to take reasonable steps to prevent sexual harassment will be strengthened - you will be required to take all reasonable steps; and
• you will be liable where a third party harasses your employees. 

You can keep up to date with these changes and find out how to prepare here. 

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