Author: Laurie Ollivent
On 15 April 2026, the UK government published a consultation on proposed reforms to non-disclosure agreements (NDAs) in the context of workplace harassment and discrimination. The changes — expected to come into force in 2027 — are extensive and if implemented will significantly alter how NDAs in this area are negotiated and agreed.
In this blog post, we outline the key areas of reform, what this means for employers, and what happens next.
Background
The Employment Rights Act 2025 introduced a new measure which renders void any provision in an agreement — such as an employment contract or settlement agreement — that prevents a worker from speaking about "relevant harassment or discrimination" or their employer's response to such. This measure is not yet in force; it awaits regulations from the government prescribing the conditions when an NDA in this context can still be valid (known as an "excepted agreement").
Three key areas of consultation
The government is now consulting on three key areas which will frame this new regime for NDAs:
- The conditions for a valid "excepted agreement" — the circumstances under which an NDA concerning harassment or discrimination can still be enforceable. The conditions being considered are extensive and may significantly change the appetite and practice for negotiating NDAs in the future (discussed further below).
- "Permitted disclosures" — the categories of individuals a worker may still speak to regardless of the NDA's terms.
- Scope of application — whether the restrictions should extend beyond ‘employees’ and ‘workers’ (as defined in the Employment Rights Act 1996) to include, for example, agency workers, secondees or self-employed contractors.
Proposed conditions for an “excepted agreement”
The government is considering an extensive range of conditions for an “excepted agreement” (i.e. the conditions under which an NDA relating to harassment or discrimination would still be valid). Many of these will have practical implications for settlement negotiations, from potentially increasing legal fees, to extending the timeframe for concluding settlement negotiations. These include:
- Independent legal advice. Workers would be required to receive written independent legal advice specifically on the terms, effect, and legal limitations of the confidentiality obligations before entering into an excepted agreement. This goes further than the current settlement agreement requirement, which covers only the terms and effect of the agreement generally. Employers are not required to fund this advice, though the government rightly acknowledges it is common practice for employers to contribute to legal fees where employees are being asked to enter into a settlement agreement — and workers (and their lawyers) may seek higher contributions to legal fees as a result.
- Written expression of preference. Workers would need to confirm in writing to their employer that they wish to enter into the agreement, following receipt of independent advice. The government is not prescribing the form this takes and assumes this may take the form of an email or written document from the worker to the employer; in practice, we expect a standardised template to emerge. However, this step may add time to negotiations and will require care around without prejudice protection and confidentiality, given the additional communication between the worker and employer during settlement negotiations.
- Cooling-off period. A 14-calendar-day withdrawal period is proposed, during which workers can exit the agreement without penalty. Critically, the government anticipates this will apply to the whole settlement agreement — not just the confidentiality provisions — which creates commercial risk where parties want certainty quickly, particularly in proceedings close to or during court or tribunal hearings. The government is consulting on whether the period could be shortened (including seven or 10 days) or waived by the worker.
- Review period. As an alternative or addition to the cooling-off period, a pre-signature review period is also under consideration. The government is minded not to make this mandatory alongside the other conditions, and workers may be able to waive it to avoid unnecessary delay.
- Written, accessible format. The excepted agreement must be provided in writing and in a format accessible to all parties — a condition consistent with existing good practice.
- Plain English requirement. The government is weighing whether to mandate plain English drafting in regulations or address this through guidance, building on the Solicitors Regulation Authority's 2024 warning notice encouraging plain language in NDAs.
- No forward-looking agreements. An excepted agreement could only relate to harassment or discrimination that has already occurred (or is alleged to have occurred). NDAs cannot be used pre-emptively to silence workers about future misconduct.
- Time limits. The government is open to requiring excepted agreements to include an agreed time limit on confidentiality obligations. Whilst this could discourage perpetual secrecy, a mandatory time limit risks being a blunt instrument across varied circumstances and could affect the financial dynamics of settlement negotiations where confidentiality is an important factor in the employer's offer – effectively, employers might see a time-limited restriction on confidentiality worth paying less for than a perpetual confidentiality restriction.
Permitted disclosures
The second area of consultation is the government’s proposal to carve-out a list of individuals who workers can make “permitted disclosures” to even if they have entered into a binding excepted agreement.
The proposed list is not overtly contentious, and builds on the existing list set out in the Victims and Prisoners Act 2024, such as those in law enforcement functions, qualified lawyers for the purpose of seeking legal advice, medical and healthcare professionals, and regulatory bodies.
However, the government is proposing to include trade union representatives who accompany workers in grievance and disciplinary cases or advise on settlement agreements, and “close family members” for the purpose of receiving support.
The government is further considering whether to allow disclosures to be made to prospective employers (including recruiters) for recruitment purposes, for example, to explain gaps in employment or reasons for departure. However, as third parties, they would not be bound by the confidentiality obligations, which may give employers pause before entering into an excepted agreement if such a carve-out is included.
What is "relevant harassment or discrimination"?
These reforms are targeted. They apply to NDAs concerning conduct defined under the Equality Act 2010, relating to harassment or discrimination. For it to be “relevant”:
- It must be carried out, or alleged to have been carried out, by the employer or another worker of the employer, and the victim may or may not be the worker signing the NDA. This therefore could include harassment that a worker witnesses their employer carry out against a colleague or other third party; or
- The victim, or alleged victim, of the harassment or discrimination must be the worker that entered into the NDA or their work colleague. This therefore captures workplace third party harassment (e.g. where a worker is harassed by someone who is not their employer or work colleague).
What next?
The new proposals are expected to come into force in 2027 but will not apply retrospectively to existing agreements. This is sooner than many may have anticipated, as it was not detailed in the government’s previous roadmap for employment law reform.
In the meantime, the direction of travel is clear: the use of NDAs in relation to allegations of workplace misconduct will face significantly greater legal and procedural constraints. Beyond the legal and regulatory framework, societal expectations have shifted markedly over the last decade — shaped by movements such as MeToo and sustained advocacy on workplace accountability.
Employers should consider:
- Reviewing current NDA and settlement agreement precedents to ensure they are ready to adapt once the final regulations are published.
- Engaging with the consultation — it closes on 8 July 2026 and represents an opportunity to shape the final regulatory framework.
As a team, we will be submitting our response to the consultation. We will also be monitoring the government's forthcoming consultation on whistleblowing reform, which was trailed alongside the consultation on NDAs and is expected to launch later this summer.
You can access a copy of the government’s consultation here.
For further guidance on how these changes may affect your organisation, please contact a member of our Employment team.