Don’t say a word… to what extent can students’ unions require confidentiality from departing sabbatical officers?

In higher education students’ unions (SU) sabbatical officers (Sabbs) are now generally employed by the union (as well as often being appointed as trustees). As such, Sabbs benefit from the relevant legal rights and protections afforded to employees under employment law.

When that employment relationship comes to an end, and in the event that there are any disagreements or complications arising in relation to the individual’s exit, the SU may wish to enter into a settlement agreement with the individual in question; in order to clarify the terms on which they are departing, waive any legal claims they may have, and to provide certainty and closure for both parties moving forward. Historically, provisions requiring that the individual keep the terms and existence of the settlement agreement confidential, including any allegations of discrimination or harassment, have been standard practice and commonplace. However, that dynamic is now shifting; significantly.

As part of the reforms in the Employment Rights Act 2025 (“ERA”), the scope of confidentiality agreements – including those contained in non-disclosure agreements (“NDAs”) and settlement agreements – will be substantially curtailed, such that any attempt to prevent the disclosure of allegations of work-related discrimination and harassment (or how the employer responded to such allegations) will be unenforceable.

These reforms are in addition to three related sets of changes which have already been brought in:

(i) part of an Office for Students (“OfS”) condition for registration for higher education providers, which prevents those providers from using NDAs to prevent disclosure of information about allegations of harassment or sexual misconduct relating to a student;

(ii) from August 2025, a change in the Higher Education (Freedom of Speech) Act 2023 to prevent and invalidate NDAs which relate to misconduct or allegations of misconduct, with misconduct defined to include sexual abuse, harassment and misconduct and other bullying and harassment;

(iii) from October 2025, changes in the Victims and Prisoners Act 2024 which prohibit the use of any confidentiality provisions which seek to prevent a victim of crime from disclosing information to certain listed persons for specified purposes relating to the crime.

This complicated landscape should be viewed in conjunction with the pre-existing legal duty, under the Worker Protection (Amendment of Equality Act 2010) Act 2023 (Worker Protection Act 2023), which requires employers to proactively take reasonable steps to prevent sexual harassment in their workplaces (which will become “all reasonable steps” in October 2026). Looking at all of this, it will likely become increasingly difficult for SUs, and other higher education providers (“HEPs”), to require confidentiality from departing employees in relation to any allegations of discrimination or harassment (even if unproven) which may have arisen in their workplaces.

Applicable Law

Settlement Agreements

A settlement agreement is a specific form of contractual agreement that, if it meets certain requirements, ends an employment dispute or relationship on agreed terms. In exchange for a financial payment or other benefits, the employee waives certain legal claims against the employer and often agrees to keep existence and terms of the agreement (sometimes including allegations of discrimination, or similar) confidential; usually after receiving independent legal advice, and often in exchange for a termination payment.

However, a settlement agreement cannot legally stop an employee from speaking up about wrongdoing in certain circumstances, and clauses purporting to do so will be void and unenforceable. The types of disclosures which cannot be prevented include those relating to whistleblowing, criminal offences, and other types of serious misconduct, provided such disclosures are made to the police, regulators or other relevant authorities.

Office for Students ongoing condition of registration

As stated above, the OfS has introduced a new ongoing condition of registration for HEPs aimed at protecting students from harassment and sexual misconduct. This condition reflects the changes under the Worker Protection Act 2023 which requires employers to take proactive action to prevent sexual harassment and misconduct. 

The new condition also requires HEPs to comply with comprehensive provisions, including to publish and maintain policies and procedures that set out how they will deal with incidents of harassment and sexual misconduct.

The new condition came into full effect in August 2025. It includes a ban on NDAs covering allegations of harassment and/or sexual misconduct. This means that HEPs must not prevent or restrict students from disclosing information about an allegation in this area and includes all agreements that compel or seek to stop students from disclosing information.

In addition, OfS highlights that HEPs must not interfere with or restrict lawful free speech when balancing obligations under the new condition, highlighting the need to ‘have particular regard to, and place significant weight on’, the importance of freedom of speech. SUs play a significant role in ensuring that universities respect students’ free speech and can influence in practice how much students know about their rights and how they engage in NDA discussions.

The Higher Education (Freedom of Speech) Act 2023

On 1 August 2025, section 1 of the Higher Education (Freedom of Speech) Act 2023 came into force.

This prohibits HEPs from entering into confidentiality provisions (including in NDAs and settlement agreements), with staff, members, students or visiting speakers which relate to complaints of sexual abuse, sexual harassment, sexual misconduct, or any other bullying or harassment (or of allegations of the same). 

Any such confidentiality provisions will be void and unenforceable.

The Victims and Prisoners Act 2024

On 1 October 2025, section 17 of the Victims and Prisoners Act 2024 came into force. 

This prevents the inclusion of any confidentiality clauses that would stop a victim of crime – or anyone who reasonably believes themselves to be a victim – from sharing information with certain specified individuals (such as the police, lawyers, regulated professionals, victim support services, regulators, or the victim’s close family). The permitted purposes for disclosure include reporting criminal behaviour, cooperating with an investigation, or seeking advice or support in connection with the crime.

Any such confidentiality provisions will be void and unenforceable.

The Employment Rights Act 2025

The ERA, which proposes to bring about a number of major changes to employee rights and protections under English employment law includes significant provisions that relate to confidentiality clauses in NDAs and settlement agreements.

Once these provisions become law (and the date of this is not yet known, but it is expected to be during the course of 2026), any term in an agreement between an employer and employee, that prevents the employee from making an allegation of, or a disclosure of information relating to, harassment or discrimination, will be void and unenforceable. This also applies to any allegation or disclosure in relation to the employer’s response to any such harassment or discrimination, or their response to an allegation or disclosure of the same. The ERA will therefore effectively prohibit the use of confidentiality clauses relating to harassment or discrimination.

All agreements between an employer and employee would be caught by these provisions (subject to secondary legislation specifying whether there will be any ‘excepted agreements’), be it an employment contract, settlement agreement, NDA, or any another agreement between the parties.

The ban on NDAs in the ERA would have a much broader application than the current statutory provisions. With unique organisational structures, SUs strike an unusual balance in their relationships with students; both employing students themselves, and supporting students employed by other employers.  SUs will need to ensure they meet all obligations to employees and student members. These obligations span across several areas, including providing a safe working and learning environment, upholding fair employment practices, supporting student welfare, and maintaining transparent governance in line with their wider responsibilities.

Reflections

There has been a growing societal shift towards removing much of the confidentiality provisions in settlement agreements in recent years. This began in around 2018 following the #MeToo movement and, as evidenced in the recent legislative changes and ERA proposals outlined above, shows no sign of abating.

These changes are also in line with a trend towards prioritising freedom of speech in the higher education sector more generally.

They will, however, have wide ranging implications for SUs; both when managing relationships with their own staff and students, and when considering their arrangements with visiting speakers.

Universities and colleges are already under existing duties to take a proactive approach to protecting staff and students from harassment and sexual misconduct in the workplace and on campus. They are also already limited to some degree in relation to what can and cannot be included in confidentiality clauses in settlement agreements and NDAs. However, moving forward, the latter will become even more restricted; with confidentiality provisions which relate to allegations of discrimination, harassment or sexual misconduct (previously often a crucial part of, and primary reason for entering into, an agreement) becoming void and unenforceable.   

With these greater restrictions on confidentiality provisions in settlement agreements, it may be that SUs are deterred from using them to settle disputes (and avoid litigation) with their employees, as the cost of entering into them may outweigh the practical benefit to the employer. This in turn may also have unintended consequences for victims of discrimination and harassment, who may themselves wish for such issues to be kept confidential and/or prefer to settle associated disputes out of court.

With the further changes coming in with the ERA, SUs must keep an eye on their own practices and policies. SUs will need to keep alive to how the changes will affect their staff, members and the students they represent.

Top tips for SUs

• Update your applicable policies, to ensure that your organisation is proactively taking reasonable steps to protect workers and students from sexual harassment and sexual misconduct in the workplace / on campus, and review them regularly.

• Make sure that staff who are responsible for implementing any applicable policies are aware of the legal requirements and any upcoming changes, and receive training on it.

• Provide appropriate training to employees preparing NDAs and implementing any relevant policies so everyone understands and respects the new obligations.

• Review arrangements with universities and update any applicable policies or practices needed to reflect the new obligations.

For further advice and support please contact Rob Turner, Mark Abbott or Liz Racine.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further advice or information about management training which we offer.