The numerous, and significant, employment law changes contained in the Employment Rights Act 2025 (“ERA 2025”), are currently in the process of being implemented – with the first tranche coming into force this month, and the remainder being rolled out over the course of the next couple of years. Of those provisions yet to be implemented, many are still subject to consultation; the outcome of which will aid the Government in determining the detail around how measures will work in practice.

One of the ERA 2025 provisions which is yet to be implemented, is that relating to the proposal to restrict the scope of confidentiality clauses in employment agreements (including contracts of employment, non-disclosure agreements (“NDAs”) and settlement agreements). More specifically, to make confidentiality clauses void if they prevent workers from speaking out about discrimination or harassment; subject to certain limited exceptions.

The Government has recently launched a consultation on these provisions, including on the question of what the exceptions should be. The consultation, which can be found here, closes on 8 July 2026.

Explore how and why confidentiality clauses are being restricted, what the Government is consulting on, and how you can get involved below.

Interested in a deep dive into NDAs? We recently hosted a discussion on the future of NDAs with sector leaders and experts at our annual employment conference, including Lucy McLynn (Bates Wells), Emma Darlow Stearn (Cloisters Chambers), Sybille Raphael (Protect) and Zelda Perkins CBE (Can’t Buy My Silence). Watch the recording here.

Why are confidentiality clauses being restricted?

Following the #MeToo movement, there has been increased public concern that some employers may use unduly onerous confidentiality clauses in NDAs and settlement agreements, to prevent workers who have encountered harassment and/or discrimination (particularly sexual harassment) in the workplace from speaking out; thus creating a “culture of silence” and in effect enabling unlawful conduct.

The relevant provisions in the ERA 2025 are intended to mitigate against such practices; by limiting when confidentiality can lawfully be required from workers, including in circumstances where workplace complaints and/or disputes are being resolved via the use of NDAs and settlement agreements.

How are confidentiality clauses being restricted?

When section 202A of ERA 2025 comes into force, any provision in any agreement between a worker and their employer (such as a contract of employment, NDA and/or settlement agreement) will be void to the extent that it prevents the worker from:

  • speaking out about “relevant” harassment or discrimination, or
  • discussing an employer’s response to disclosures about (or acts of) harassment or discrimination.

“Relevant” harassment or discrimination will, broadly speaking, be any harassment or discrimination occurring in a workplace context.

However, the restrictions outlined above will not apply to any confidentiality provisions which are contained in an “excepted agreement”. The ERA 2025 does not define what an excepted agreement is – this is something that is being consulted upon, and will be clarified in further regulations (which are yet to be drafted).

What exactly is the Government consulting on?

The Government’s consultation is seeking views on:

What an “excepted agreement” might be – i.e., the conditions which will have to be met in order for confidentiality provisions in employment agreements (such as NDAs and/or settlement agreements) to still be validly entered into in cases of harassment and discrimination.

  • For example, an agreement which has been requested by the worker (in writing) who, prior to requesting and entering into it, has received independent legal advice (also in writing) from a “relevant advisor” on the terms and effect of the agreement; with the agreement expressly identifying the advisor, and only applying to incidents of harassment or discrimination that have already occurred (not future incidents).
    • The law already requires an individual to obtain independent legal advice on the terms and effect of any settlement agreement before entering into it, in order for it to be legally binding (but not for other types of employment agreements, like employment contracts). And best practice already includes expressly identifying the relevant advisor in the agreement.
    • The consultation will seek views on whether and in what circumstances an agreement might be an “excepted agreement” if requested by an employer.
  • The consultation also seeks views on whether an excepted agreement should include a 14 day (or shorter) “cooling off” period, in which the individual is able to withdraw from the agreement without penalty, and whether workers should be able to waive any such cooling off period if they wish to do so.
  • The consultation will also explore whether confidentiality obligations should be time-limited and subject to a statutory maximum (currently, they are usually indefinite).

What a “permitted disclosure” might be – i.e., which individuals, or bodies, workers who enter into an excepted agreement will be allowed to speak to about the harassment and/or discrimination they have encountered, irrespective of what their NDA or settlement agreement says.

  • For example, disclosures made to a qualified lawyer, medical professional, other individuals or bodies in order to receive advice or support (such as law enforcement, regulated professionals, victim support services, regulators, ACAS, trade union representatives and close family), and/or prospective employers.
    • The law, and current best practice, already allows disclosures in certain circumstances, including to immediate family members (provided they agree to keep the information confidential), legal and medical advisors (and other professional advisors who are under a duty of confidentiality, provided they maintain that confidentiality), law enforcement bodies, regulators and (in some circumstances) victim support services.
  • Note that an excepted agreement will not be able to prevent workers from whistleblowing or from reporting a crime.
    • This reflects the existing position, which is that any NDA or settlement agreement which tries to prevent an individual from making a protected disclosure for whistleblowing purposes, is void and unenforceable.

Who should benefit from these protections – i.e., whether the types of individuals the legislation applies to should be extended beyond those who meet the definitions of “employee” and “worker” in the Employment Rights Act 1996.

  • For example, whether self-employed individuals, agency workers, seconded workers, interns and/or trainees should also benefit from the new protections (which are currently limited to employees and workers).

Who should respond to the consultation?

The Government is seeking responses from “all stakeholders”, but in particular:

  • individuals who may have experience of signing NDAs or settlement agreements;
  • employers;
  • charities;
  • business representative organisations;
  • trade unions;
  • legal representatives; and
  • academics.

The consultation gives employers an important opportunity to put forward the business case for being able to raise the issue of confidentiality with workers when circumstances require it (and on what basis), and to highlight any practical issues with the proposed changes (for example, the practicality of having a “cooling off” period in relation to confidentiality provisions which are contained in a broader settlement agreement that also covers other employment issues).

Next steps

The consultation will remain open until 8 July 2026. The Government will then consider the responses and publish the outcome, along with any secondary legislation required to bring the new rules into force. The new rules are expected to come into force during 2027, but a date has not yet been set.

If your organisation has any questions on any of the points raised above, please get in touch, and our team of experienced employment lawyers would be happy to help.

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.