NDAs are facing a wave of reform, prompting employers to reassess how they manage sensitive workplace issues. Many employers have already updated their settlement agreement templates following the Solicitors Regulation Authority's 2024 Warning Notice, which clarified that NDAs must not be used to prevent reporting to regulators or law enforcement or impede cooperation with investigations.
Now, two further developments are on the horizon:
- Section 17 of the Victims and Prisoners Act 2024, which limits confidentiality clauses for crime victims from 1 October 2025
- Proposed changes in the Employment Rights Bill, which aim to prohibit NDAs that restrict disclosures about harassment and discrimination.
In light of these changes, it's time to revisit any settlement or COT3 agreements that seek to preserve confidentiality around workplace issues or claims being settled.
Victims and Prisoners Act 2024: key points
From 1 October 2025, any clause signed on or after that date will be unenforceable if it attempts to prevent a crime victim from making a permitted disclosure. The aim is to ensure NDAs cannot be used to suppress information about criminal conduct. The types of workplace incidents that may amount to a crime include physical assaults, sexual offences, harassment and stalking under the Protection of Harassment Act, theft and fraud and criminal damage.
A "victim" includes anyone who has suffered—or reasonably believes they have suffered—harm directly caused by criminal conduct, regardless of whether a report, investigation or conviction follows.
Permitted disclosures may be made to:
- Police or prosecutorial bodies
- Qualified legal advisers
- Regulated professionals (e.g. healthcare practitioners)
- Victim-support services
- Regulators
- Authorised representatives of the above
- Close family members (for support)
These carve-outs are designed to enable victims to seek help and advice, not to facilitate public disclosures.
Practical steps for employers
- Audit
If you've already updated settlement or COT3 agreements to reflect the SRA Warning Notice, ensure your carve-outs now cover the broader list under the new Act and apply specifically to crime victims. - Employment Rights Bill
While it's too early to amend templates for the Bill's provisions, start identifying where changes may be needed. This will ease the transition once the Secretary of State clarifies the scope of "excepted agreements." - Train HR and managers
Ensure those involved in exit negotiations understand that certain confidentiality obligations are/will be no longer lawful.
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.
