Britain weighs broader clampdown on NDAs

Britain has opened a consultation on how far it should go in curbing non-disclosure agreements used in workplace harassment and discrimination cases, moving from last year’s headline ban to the harder question of how settlement agreements will work in practice. The Department for Business and Trade said on 15 April that the consultation will run for 12 weeks, closing on 8 July, and that the resulting changes are intended to come into force in 2027. The exercise applies to England, Scotland, and Wales.

The consultation sits on top of the Employment Rights Act 2025, which inserted section 202A into the Employment Rights Act 1996 and voids confidentiality terms that prevent a worker from raising allegations of, or disclosing information about, relevant harassment or discrimination. Ministers are now testing what kind of confidentiality, if any, should still survive through an “excepted agreement” and who a worker must remain free to speak to regardless of what has been signed.

Under the options set out in the consultation paper, an excepted agreement could be valid only if the worker has received independent written advice, has expressed a written preference to enter the agreement after receiving that advice, and is given a cooling-off period, with 14 days among the options floated. The paper also asks whether confidentiality should be limited to incidents that have already happened and whether any confidentiality term should be time-limited rather than open-ended. Employment Rights Minister Kate Dearden said: “These changes will ensure no one has to suffer in silence and give workers confidence that inappropriate behaviour will be dealt with.”

The government is also proposing a wider list of permitted disclosures after an excepted agreement is signed. That list includes police and other law-enforcement bodies, regulators such as the Financial Conduct Authority, the Health and Safety Executive, the Information Commissioner’s Office, and the Serious Fraud Office, alongside qualified lawyers, certain regulated professionals and tax advisers, victim-support services, Acas officers, union representatives, authorised intermediaries, and close family members. Friends and prospective employers are not included as automatic defaults, although the paper says parties could still name additional recipients in an agreement.

The consultation does not reopen the broader use of confidentiality clauses to protect trade secrets or commercially sensitive information. Its focus is narrower, but operationally significant: confidentiality in harassment and discrimination cases would become more conditional, more procedural, and harder to deploy as a standard term in settlements. That points to more scrutiny of how complaints are investigated, how evidence is recorded, and whether employers are relying on legal wording to manage issues that regulators increasingly treat as culture and conduct failures.

The timing sits alongside a wider tightening of workplace conduct rules. Since October 2024, employers have been under a legal duty to take reasonable steps to prevent sexual harassment, with employment tribunals able to increase compensation by up to 25% where that duty is breached. In financial services, the FCA said in July 2025 that serious bullying and harassment qualify as misconduct, and from 1 September 2026 the same rules will apply across around 37,000 additional regulated companies. The regulator’s culture survey also found confidentiality agreements were used most frequently in discrimination cases, and in bullying and harassment cases, among 1,028 wholesale companies surveyed.

The consultation’s widest implications sit in its questions on scope. Ministers are asking whether the regime should later extend beyond the usual statutory definition of worker to cover agency staff, secondees, work-experience placements, nurses and midwives in training, NHS practitioners operating as self-employed contractors, and other self-employed groups. The paper says government may adopt a staggered approach, starting with those already covered by section 202A and considering wider categories later. That leaves the final boundary of the regime unresolved in workplaces that rely heavily on agency, secondment, and freelance arrangements.