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Goodbye to gagging orders? | How amendments to the Employment Rights Bill could end NDA misuse
Written by Jane Hallas on 7 August 2025
Non-disclosure agreements (NDAs) – legal contracts used to prevent the sharing of certain information with others – can serve a valid purpose. In a workplace setting, they are used to protect trade secrets, safeguard client data, and avoid reputational damage.
In the employment law context, NDAs normally form part of a settlement agreement (as opposed to being a standalone document) and are typically used to waive potential claims an employee may have against their employer. The NDA is included as a confidentiality clause within the settlement agreement (or COT3 if Acas is involved).
However, concerns have grown over the use of NDAs within settlement agreements to stop employees from speaking out about workplace misconduct – particularly sexual harassment and discrimination. Critics argue that, in some cases, NDAs have been misused to silence victims and protect reputations, rather than address wrongdoing. The use of NDAs in this context is different from that of confidentiality clauses, which prevent the disclosure of commercially sensitive information or the circumstances surrounding termination of employment.
In 2018, the Solicitors Regulation Authority (SRA) published a Warning Notice on the inappropriate use of NDAs, reminding solicitors that they should not be used as a means of preventing a person from co-operating with authorities or reporting offences, including whistleblowing. This applies even if all parties to an NDA are legally represented, and regardless of whether the NDA involves individuals or companies.
To strengthen this stance, the UK government recently announced amendments to the Employment Rights Bill that would make certain NDAs unenforceable. The aim? To ensure that individuals who experience or witness harassment or discrimination at work are free to speak up.
If passed, these reforms would mark one of the most impactful updates to workplace protections in decades. Here’s what you need to know.
What are the proposed changes to NDAs in the workplace?
The government’s proposed amendments to the Employment Rights Bill would significantly limit the use of confidentiality clauses in cases involving workplace misconduct. Specifically:
- Confidentiality clauses in settlement agreements that attempt to prevent employees from disclosing allegations of certain types of harassment or discrimination would be rendered unenforceable.
- Employees would be free to speak openly about their experiences, even after signing a settlement agreement.
- Legal protections would be extended to bystanders – such as colleagues or managers – who choose to speak out about inappropriate behaviour they have witnessed.
Note that these changes apply solely to confidentiality clauses relating to workplace misconduct – they won’t affect the use of commercial NDAs designed to protect intellectual property, trade secrets, or other sensitive business information. These types of agreements will remain valid and enforceable.
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Who do the changes apply to?
- The proposed restrictions on NDAs apply to employers in England, Scotland and Wales. They are already in force in Ireland.
- While these provisions may appear to target large, high-profile organisations, they will apply to all UK employers, regardless of size.
- However, they will not apply to an “excepted agreement” – a term that will be defined through further legislation following consultation. It’s expected that this may apply to situations where the NDA has been requested by the employee.
What's driving these changes?
These reforms form part of a broader movement driven by growing calls for greater transparency and fairness in the workplace – calls that gained momentum during the #MeToo era.
While high-profile cases have brought attention to the issue, NDAs aren’t just a mechanism for resolving celebrity or executive-level disputes. On the contrary, research shows they are commonly used in sectors with lower-paid, less secure jobs, like retail and hospitality.
In fact, a recent CIPD survey found that one in five employers (22%) use NDAs to deal with allegations of sexual harassment, highlighting just how prevalent they are. Despite this, nearly half (48%) said they would support a ban on such agreements, with just 18% opposed to the idea – indicating a strong appetite for change in how these issues are handled.
How will this impact employers?
This change signals a significant turning point for HR leaders and business owners alike, many of whom have long relied on NDAs to manage disputes discreetly. However, the government is making it clear that going forward, that approach will no longer be an option – transparency and accountability must take priority over confidentiality.
What should employers do now?
With NDAs potentially becoming obsolete in cases involving harassment and discrimination, employers should take steps to safeguard their organisations. We recommend:
Focusing on building a positive culture
The reforms reflect a broader cultural shift. Proactive efforts to create a respectful, open, and transparent workplace will be more important than ever.
Educating managers
It’s essential that managers understand that harassment, discrimination, and victimisation are illegal and cannot simply be hidden behind paperwork or NDAs. Prevention through awareness and training is key.
Handling complaints transparently
A ‘payout plus NDA’ approach to settling complaints may no longer wash. Instead, prioritise thorough investigations and fair, transparent outcomes over confidentiality-driven solutions.
Seeking professional support
With legal requirements tightening, it’s essential that employers approach potential settlement situations carefully. Our Employment Law specialists can advise on the proper use of settlement agreements and draft these complex documents for you to ensure enforceability and compliance.
A note for higher education providers
While proposed changes to NDA rules are still making their way through Parliament, the higher education sector is already seeing reforms take effect.
From 1 August 2025, Section 1 of the Higher Education (Freedom of Speech) Act 2023 (HEFSA) came into force in England and Wales, prohibiting higher education providers from entering into NDAs in connection with complaints of sexual abuse, sexual harassment, sexual misconduct, or other bullying or harassment.
This restriction applies to agreements with staff, students, visiting speakers, and members, and reflects the government’s wider effort to prevent NDAs being used to silence individuals who raise concerns about serious misconduct.
Final thoughts
The proposed amendments to the Employment Rights Bill, together with the recent changes under HEFSA and the upcoming implementation of Section 17 of the Victims and Prisoners Act 2024, reflect a clear and growing shift in the legal landscape surrounding NDAs. Legal and public scrutiny is intensifying, and the direction of travel is unmistakable: the government is clamping down on the use of NDAs to silence individuals who have been subjected to or witnessed misconduct.
These reforms are not about removing protections for employers, but about preventing the misuse of NDAs in ways that undermine transparency, accountability, and employee rights.
Organisations that prioritise integrity, compliance, and a culture of openness will be best placed to adapt – and to earn the trust of their workforce in the process.
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