The UK government has recently announced an amendment to the Employment Rights Bill, targeting the misuse of non-disclosure agreements (NDAs) in cases of workplace harassment (including sexual harassment and discrimination) and abuse. This move follows years of campaigning by victims and advocacy groups, aiming to end the misuse of NDAs in covering up workplace misconduct and marks a significant shift in employment law and employee protections. In this article we explore what NDAs are, their current legal status, what the amendment proposes, the practical implications of this potential change on workplace disputes, as well as offering some commentary on what this amendment could mean for employers and employees.
- What are NDAs?
NDAs (also known as confidentiality agreements or clauses) are legally binding contracts that are used to restrict the disclosure of certain information. In an employment context, NDAs are often included within employment contracts and/or settlement agreements upon the termination of employment (sometimes inappropriately).
- What is the current legal status of NDAs?
Currently, NDAs are lawful and enforceable provided they do not seek to contract out of statutory rights or obstruct an individual from reporting criminal offences. However, in practice, many individuals (particularly those without legal representation) may not be aware of these exceptions or feel empowered to challenge an NDA’s scope. This has allowed some employers to use NDAs as a tool for silencing victims.
- What does the new provision say?
The governments’ newly proposed clause 22A under the Employment Rights Bill will ban NDAs used to silence employees subjected to harassment and abuse. Specifically:
- NDAs preventing employees from speaking out about allegations of harassment or discrimination will be rendered null and void.
- The ban extends to witnesses, who will be able to support victims without fear of legal repercussions.
This amendment is part of a broader package of reforms under the Employment Rights Bill which also addresses zero-hours contracts, fire and rehire practices, and expands rights to sick pay, parental leave and bereavement leave to those facing pregnancy loss.
- What does the proposed change mean for workplace disputes?
If enacted, a ban on NDAs that silence victims of workplace harassment and discrimination will be a significant step forward for employee protection in the UK.
From an employee perspective:
- Victims and witnesses will have the legal right to speak openly about their experiences without fear of legal action.
- It may encourage more victims to come forward and seek justice, knowing they can share their stories.
- A culture of openness is likely to emerge, reducing the stigma and isolation often felt by those affected by workplace abuse.
From an employer perspective:
- Employers will no longer be able to use NDAs to conceal inappropriate or unlawful behaviour, potentially increasing transparency and accountability.
- Greater scrutiny and reputational risk may lead to a renewed emphasis on internal prevention and training.
- Organisations will need to review and revise their employment contracts, policies, settlement agreements, and HR practices to ensure compliance.
- What do we think about the proposed amendment?
This amendment is both welcome and necessary. Too often, NDAs have been used to suppress individuals and conceal patterns of serious wrongdoing rather than protecting legitimate business interests. The proposed ban restores the intended balance by making it clear that the rights of individuals to speak out about abuse override any contractual obligation to remain silent.
That said, several questions remain. For example:
- NDAs often play a role in encouraging early and amicable resolution of disputes. Without the promise of confidentiality, some employers may be less inclined to settle sensitive matters.
- While protecting victims is paramount, employers still need mechanisms to protect legitimate business interests. Clear drafting and guidance will be essential to ensure that the boundary between legitimate and illegitimate uses of NDAs is properly understood and consistently applied.
Conclusion
The proposed ban on NDAs silencing victims of workplace harassment and discrimination represents a significant moment in UK employment law. The overriding message is clear – the abuse of NDAs to cover up misconduct is no longer acceptable. Transparency and accountability must take precedence over secrecy. If implemented effectively, these changes could reshape workplace culture for the better.
To discuss an NDA or similar employment matter please do not hesitate to contact Robyn and our specialist team at atch.law
Useful Information:
- More about Robyn’s expertise
- Robyn’s latest blogs:
- An Employer’s Guide to Responding to Protected Disclosures: Lessons from Dr Susan Gilby vs (1) Countess of Chester Hospital NHS Foundation Trust and (2) Ian Haythornthwaite – Arch Law
- Making Protected Disclosures: A Guide for Whistleblowers – Arch LawProtecting Whistleblowers: Lessons learned from Dr Susan Gilby v (1) Countess of Chester Hospital NHS Foundation Trust and (2) Ian Haythornthwaite – Arch Law
