More recently, forthcoming reforms under the Employment Rights Act 2025 have put NDAs under the spotlight again. On 15 April 2026, the government published its long anticipated consultation seeking views on its proposals to change the way employers use confidentiality clauses (including non-disclosure, non-derogatory and non-disparagement clauses) in harassment and discrimination cases.

For employers, the current position is a balancing act: NDAs remain a legitimate tool for maintaining confidentiality and resolving disputes, but they need to be used carefully and as part of a broader approach that prioritises fairness, transparency and trust.

What does the proposal mean for employers?

It is expected that from 2027, section 202A of the Employment Rights Act 1996 will make any clause void if it prevents a worker from making an allegation of, or disclosing information relating to, relevant harassment or discrimination, or the employer’s response to it. For employers, this marks another important change, further limiting the circumstances in which NDAs and confidentiality clauses can be used to manage legal and reputational risk arising from allegations of misconduct.

The government makes clear that when it talks about NDAs in the context of workplace misconduct, it’s looking at a fairly broad category of “relevant harassment and discrimination” under the Equality Act 2010. This includes direct and indirect discrimination, failures to make reasonable adjustments for disability, harassment (including sexual harassment) and protections relating to pregnancy, maternity and gender reassignment.

Importantly, the scope doesn’t stop at conduct carried out directly by the employer or other workers. It also extends to behaviour by third parties such as the employer’s clients or customers. Employers should therefore think laterally about risk exposure and beyond strictly internal relationships.

The shift to “excepted agreements”

While the government recognises that confidentiality may still be appropriate in some cases, it proposes that only “excepted agreements” should be enforceable, subject to far tighter statutory safeguards than the current framework.

At present, NDAs are commonly used within settlement agreements, allowing workers to waive their rights to bring claims, provided certain safeguards are met. These include: the agreement being in writing, relating to particular complaints, and the worker receiving independent legal advice on the terms and effect of the waiver. Without those elements, any attempt to contract out of discrimination or harassment claims will be void. It is also important to note that employers who rely on “standard wording” without tailoring it to the circumstances may be exposing themselves to increased scrutiny by the Tribunal.

Key conditions for enforceable NDAs

For an NDA to qualify as an excepted agreement, a series of mandatory conditions will need to be satisfied:

Independent legal advice: workers must have independent legal advice in writing on the terms and effect and legal limitations of the proposed confidentiality obligations. While this requirement does not currently apply to COT3 agreements, the government is considering whether ACAS conciliators could fall within the definition of an independent adviser; an area employers should keep under review.
Informed written consent: workers must confirm in writing that they wish to enter into the NDA, after receiving legal advice. This reinforces a move toward informed consent rather than implied acceptance during negotiations.
Mandatory 14-day cooling-off period: which cannot be waived and applies after receiving independent legal advice and the agreement is signed. The government is seeking views on whether the cooling off period should only apply to the confidentiality clauses or the entire agreement. This includes whether the cooling off period can be waived in its entirety or a shorter period should apply. From a practical perspective, this may affect certainty and timing in settlement negotiations. Employers may need to plan for extended timelines, build this into exit strategies and planning and factor in that settlement ‘on the steps of the Tribunal’ may be unfeasible in the future.
Clarity and accessibility: agreements must be clear, accessible and provided to all parties, and they may relate only to past conduct, preventing employers from using NDAs to restrict discussion of future events.
Named adviser and insurance: the adviser must be identified in the agreement and hold appropriate indemnity insurance. However, this comes with a new caveat that employers will not be required to fund the advice. That said, the government expects employers to continue the current practice and pay for legal advice, particularly where the NDA forms part of a settlement agreement.

The government is also exploring whether confidentiality provisions in an excepted agreement should be time‑limited. If introduced, this would mark a departure from current practice and may affect how employers assess long-term risk.

Extending protections

As it stands, NDAs cannot be used to prevent individuals from reporting misconduct to regulators, law enforcement or certain prescribed bodies nor can they lawfully restrict disclosures protected under whistleblowing legislation. The government now proposes to extend the definition of “permitted disclosures” to include:

law enforcement
qualified lawyers
regulated professionals (such as doctors, paramedics and social workers)
tax advisers
victim support services
regulatory bodies (such as the Solicitors Regulation Authority, General Medical Council and the Equality and Human Rights Commission)
ACAS and trade union representatives
close family members

Interestingly, the government is consulting on whether this should be expanded to cover prospective employers, recruiters and a broader circle of family and friends. While its current preference is not to extend protections this far, given the difficulty of defining terms such as “friend”, it recognises that workers may rely on informal support networks when navigating workplace concerns.

Another key proposal is whether these protections should extend beyond the statutory definition of “worker” to include agency workers, secondees, work‑experience individuals, healthcare trainees, certain NHS workers, and some self‑employed individuals. The government recognises that these groups may be particularly vulnerable to pressure to sign NDAs.

Other reforms

The government is already taking steps to limit NDAs where there is a clear public interest in individuals speaking up. For example, higher education employers now face a blanket ban on NDAs in cases involving sexual misconduct or harassment. While sector‑specific, this sends a strong signal about the direction of travel and expectations around transparency and accountability.

At the same time, protections for victims and witnesses of crime continue to strengthen. NDAs will not be able to prevent individuals from reporting concerns to the police or regulators, or from seeking appropriate support. The message is clear: confidentiality clauses should never stand in the way of reporting criminal conduct.

For employers, this is a useful opportunity to pause and reflect on current practices: the focus should not be solely on what is legally enforceable, but on prevention and the effectiveness of internal processes for handling complaints.

Next steps

The consultation closes on 8 July 2026. The government will then review responses before issuing regulations.

We will publish a follow‑up article analysing the final position and its practical implications for employers.

As with other employment law reforms, any changes are likely to be phased rather than immediate, but in the meantime, employers should:

Review existing NDA and confidentiality wording in contracts and settlement agreements and tighten up drafting where possible
Identify areas of weakness and be clear about when NDAs remain appropriate
Train HR teams on how NDAs should be discussed and presented during settlement negotiations
Review internal reporting and whistleblowing processes
Focus on organisational culture as much as compliance, with an emphasis on prevention

How Greenwoods can help

If you would like support in reviewing your NDA practices or responding to the consultation, we are happy to help. Please contact us and we will take care of the rest.

Non-Disclosure Agreements: a new era?