UK government consults on new NDA restrictions

When s202A of the Employment Rights Act 2025 comes into force, an NDA will be void if it prevents an employee speaking out about relevant harassment or discrimination, or an employer’s response to disclosures about or acts of harassment or discrimination. Relevant harassment or discrimination is broadly discrimination that occurs in the workplace context.

Despite this general prohibition, NDAs meeting certain conditions will be “excepted agreements” and remain valid. The government is consulting about what those conditions should be.

The consultation paper suggests that an NDA should be valid if:

• A worker receives independent written advice from a relevant adviser before entering it;
• The advice covers the NDA’s terms and effect and legal limitations;
• The agreement identifies the relevant adviser;
• The worker expresses their preference for entering an NDA in writing after receiving the independent advice;
• There is a 14 day “cooling off” period in which the worker can withdraw from the agreement without penalty;
• All parties receive a copy in writing and in an accessible format where necessary; and
• The NDA only relates to incidents of harassment or discrimination that have already occurred and does not apply to future incidents.

The government is not suggesting that it will require employers to pay for the worker’s independent advice.

Regulatory requirements already mean that confidentiality provisions normally don’t apply to disclosures to organisations such as law enforcement bodies, regulators, those providing confidential and independent support services, and close family members. Exempt agreements will take the same approach, and the consultation asks whether to include prospective employers in the relevant list of organisations.

Outstanding issues

The proposals imply that employers will still be able to include NDA/ confidentiality provisions in settlement agreements if they comply with the additional safeguards.

However, an important open question in the consultation is whether an NDA should be valid only if a worker requests it, or whether employers should also be able to suggest a confidentiality provision. If it is only permissible to include an NDA at a worker’s request, that will significantly reduce the number of cases where employers can use NDAs.

Other outstanding issues on which the government is seeking views include how a “cooling off” period will operate if an NDA is included as part of a wider settlement agreement, whether it should be possible for a worker to waive the cooling off period and whether the government should stipulate a maximum period that confidentiality obligations can last. The government also asks whether the NDA provisions should extend to groups such as agency or seconded workers in future.

Next steps

The consultation exercise remains open until 8 July 2026 and gives employers a chance to provide the business case for being able to raise the question of confidentiality with workers and highlight the practical difficulties around cooling off periods.

The new rules are anticipated to come into force during 2027.

Authored by Jo Broadbent and Stefan Martin.