Recent government amendments to the Employment Rights Bill, now under scrutiny in the House of Lords, propose substantial legal changes to the enforceability of non‑disclosure agreement (NDA) clauses in harassment and discrimination cases.
What the 7 July Amendments Introduce
If this new amendment comes into force, any contractual term, whether in an employment contract, settlement agreement, or standalone NDA, that prevents a worker from making allegations or disclosures regarding “relevant harassment or discrimination”, or an employer’s response to such behaviour, will be void.
What is ‘Relevant Harassment or Discrimination?’
The phrase refers to certain types of harassment or discrimination as set out in the Equality Act 2010, specifically those found under section 13 (direct discrimination), sections 15 to 19A (which include indirect discrimination, discrimination arising from disability, and pregnancy and maternity provisions), and section 26 (harassment).
For a matter to be treated as “relevant” under section 202A, the conduct in question must involve the employer or another person working for the employer. In addition, the individual affected must either be the worker making the disclosure or one of their co‑workers.
What Is Not Covered?
Somewhat surprisingly, the new provisions explicitly exclude confidentiality restrictions related to failure to make reasonable adjustments under sections 20–22 of the Equality Act or to victimisation under section 27. Although employer reprisals following disclosures may fall within the provision’s reach, current wording does not encompass third‑party harassment or disability‑adjustment claims.
The Role of “Excepted Agreements”
There is an exception to the ban on NDAs in the form of “excepted agreements”. Section 202A allows the Secretary of State to define “excepted agreements” via regulations, but no definition has been provided yet. The government’s statement clarifies that confidentiality in settlement agreements will be void unless they meet specific regulatory exceptions.
Ministers have drawn attention to Ireland’s model where an NDA requested by an employee and issued with independent legal advice funded by the employer remains valid. Comparable measures may be adopted in UK regulations.
Timing of Implementation
The ERB’s roadmap published on 1 July 2025 does not specify when the new NDA provisions will come into force but the current parliamentary timetable suggests that this may happen in late 2026 or early 2027.
Employer Guidance and Strategic Response
HR and legal teams should take a proactive approach as follows:
- Audit current settlement agreements, NDAs, and standard contracts to identify and remove confidentiality terms that restrict legitimate disclosures.
- Review investigation procedures to ensure employer responses, evidence handling, and record‑keeping are not subject to prohibited confidentiality.
- Consider whether further training to employees on discrimination and harassment issues is necessary.
- Monitor forthcoming regulations defining “excepted agreements” and prepare to adjust settlement templates accordingly.
- Provide clear guidance across the organisation clarifying that confidentiality may not apply in these sensitive areas, while maintaining necessary protections for legitimate business interests.
Wider Context and Legal Outlook
The ERB NDA amendments address a number of longstanding concerns regarding alleged covering up of sexual harassment cases and other forms of unlawful discrimination. Complementary reforms have already been enacted in other sectors, including forthcoming bans on NDAs in universities and bans on NDAs which prevent disclosures by those who have been a victim of criminal conduct.
If enacted, the changes will mark a significant reform to confidentiality law. However, the true impact depends on how “excepted agreements” are defined, how gaps in scope are addressed, and the timing of implementation. As a result of these changes, employers may become less willing to settle claims of discrimination and harassment if settlement doesn’t mean that matters are definitively drawn to a close and if the employee remains free to continue raising their claims publicly, with the inherent reputational risk to the employer. This is turn may lead to greater numbers of Employment Tribunal claims on top of the increase that is already likely from the wider changes in the Employment Rights Bill.
