Silenced No More: The Future of NDAs in UK Employment Law

On 8 July 2025, the government announced plans to put forward measures to ban the use of Non-Disclosure Agreements (“NDAs”) to silence employees subjected to harassment or discrimination. This proposal came as part of a set of sweeping proposed amendments to the Employment Rights Bill. Whilst the proposed amendments have not been confirmed in law yet, they have certainly garnered significant media attention, and debate in the employment sphere about the potential ramifications of this approach.

On the face of it, this change appears a great step forward for those advocating for further protections for victims of harassment and discrimination. The silencing of those impacted by harassment has been a key takeaway from the Harvey Weinstein and Mohamed Al Fayed cases, where both have been accused of using their power and influence to coerce accusers into silence using these NDAs. It is clear that the immoral and unlawful use of NDAs to pressure victims of harassment and abuse into silence absolutely must be tackled, and steps taken to ensure that proper understanding of the limits and enforceability of NDAs are known to those signing them.

However, concerns have been raised that this proposed blanket ban may go to far, and restrict credible attempts to end litigation under the terms of a mutually beneficial settlement agreement.

Clearly there is a web to untangle here, and to help readers understand the position, we have set out some key considerations about NDAs, their usage, and the potential risks that may come with a blanket ban.

What are NDAs?

NDAs are legally binding agreements where both parties agree to confidentiality about the topic concerned. These are commonly used in respect of intellectual property or trade secrets. However, they are also a common feature in settlement agreements used to bring to an end an employment relationship, or to settle an employment dispute.

It is very common to see in a settlement agreement terms where both parties agree to keep the terms and existence of the agreement confidential, and in some cases even the circumstances leading to termination.

Such clauses have recently come under scrutiny, with the SRA (the body that regulates solicitors) issuing a clear warning and guidance on the lawful use of NDAs. Whilst, currently, an NDA can be used, parties must not be placed under undue pressure to sign, and it must be very clear that parties are still permitted to make lawful and protected disclosures.

Why NDAs Are Used in Settlement Agreements

So if there is so much scrutiny, why are NDAs still being utilised in almost every settlement agreement?

The fact is that NDAs serve several legitimate purposes in employment law:

• Protecting sensitive business information, such as trade secrets or client data.
• Ensuring finality in disputes by preventing parties from revisiting settled issues or raising them again to third parties.
• Safeguarding reputations of both employers and employees.
• Encouraging settlement by offering confidentiality as part of the resolution.

What disclosures can you still make with an NDA?

Before we dive into the proposed changes, it is really important to understand that currently employees already have an the right to make disclosures to various law enforcement bodies and regulatory bodies even if there is an NDA in place.

An NDA cannot stop an employee from, for example, reporting an incident of sexual assault to the police, provided this is done in good faith. A settlement agreement should make it very clear that these rights are still reserved notwithstanding the NDA.

The issues arise when this is not made clear to the employee, and they are led to believe that no lawful disclosure can be made. It is worth noting too, that this is not completely unrestricted rights to disclose the information. They often cannot for example, make a disclosure to the press or on social media without being in breach of the NDA.

Proposed Changes Under the Employment Rights Bill

The governments’ newly proposed Clause 22A will ban employers from using NDAs intended to silence harassment and discrimination in the workplace. In announcing the proposed changes, Deputy Prime Minister Angela Rayner has said that “The Employment Rights Bill will ban any NDA used for this purpose, so that no one is forced to suffer in silence”.

The proposed amendment is that any NDA which looks to preclude a worker from making an allegation or disclosure of information about:

• Relevant harassment or discrimination
• or the employers response to the relevant harassment or discrimination, or an allegation of such.

In this clause, relevant harassment or discrimination is where the conduct was by the employer or another worker of the employer, or against the worker or another worker of the employer.

What are the concerns?

Whilst there are some concerns about the drafting of the proposed amendment as it currently stands, such as the lack of definition of ‘allegation’, it is likely that these points will be clarified as the Bill passes through parliament.

More concerning for many employers and employees alike, is the impact this may have on meaningful settlement negotiations. For many employers looking to settle a claim of harassment or discrimination, they will wish to do so confidentially. In return for confidentiality, employers will often agree to a compensation payment. It is for the employee to determine if the payment adequately compensates them for the treatment they have faced and their silence. If an employee wishes to pursue justice in public, they have the right to continue to do so.

Similarly, concerns have been raised over the control victims may have over what information about them is disclosed to the public. The NDA ban will work both ways, so an employer will also have the right to make statements about any allegations of harassment and discrimination. In a sphere where many victims already feel they are unable to speak up about incidents of harassment, there are concerns that these amendments may have the opposite of the intended effect.

In the discourse surrounding these amendments, there are many stories of individuals who did not want to pursue litigation to the end, and were happy to take a payment and be able to move forward. The issue here is that without the negotiating power of confidentiality, many employers may be unwilling to agree to a reasonable settlement sum due to the continued reputational risks.

Whilst we are optimistic that the issue of misuse of NDAs is being addressed, there remain concerns about the impact this may have on the ability to settle disputes, and the knock on impact to our already over-stretched judiciary. We will be watching this space carefully as the amendment is confirmed. In the meantime, if you would like advice on updating or negotiating NDAs,   please do not hesitate to get in touch with our employment lawyers.