Not if your complaint relates to sexual misconduct or other bullying or harassment.
On 1 August 2025 section 1 of the Higher Education (Freedom of Speech) Act 2023 came into force. This legislation prevents English providers of higher education from entering into NDAs (non-disclosure agreements) with staff, students, members or visiting speakers in relation to any allegations of sexual abuse, sexual harassment, sexual misconduct or other bullying or harassment.
It's hard to see when a higher education establishment will be able to use an NDA since allegations of discrimination are often tainted with harassment. Careful observance of the regulation will be required and some creative lawyering no doubt. NDAs are not all bad. In some circumstances they protect the victim as well as the perpetrator. Claimants should be able to choose whether they want an NDA rather than the law adopting a blanket ban. Well-advised clients who have the benefit of legal advice should have this option.
The Government proposed a late amendment to the Employment Rights Bill which proposes to void any NDAs in employment settlement agreements where sexual misconduct is alleged unless an exception applies. We wait to see what this means in reality. The House of Lords passed the amendment at Report Stage so it is likely to become law. Ensuing regulations will fetter how the law applies. The Government has indicated that further consultation will take place before the measure comes into force and as yet no timetable for implementation has been provided.
In another effort to curb the use of NDAs the Government has now implemented section 17 of the Victims & Prisoners Act 2024 which comes into force from 1 October 2025. This will void any provision in an agreement which prevents disclosures by victims of criminal conduct.
It is to be noted that already NDAs in the employment sphere prohibit the gagging of whistleblowers from reporting concerns to a relevant regulator or the Police.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
