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An amendment to the Employment Rights Bill is set to ban employers from using confidentiality and non-disclosure agreements relating to harassment and discrimination.
In recent years, non-disclosure agreements (commonly known as NDAs) have become a hot topic. Indeed, in June 2025 we wrote about the Ministry of Justice's guidance on forthcoming changes to NDAs and confidentiality clauses signed on or after 1 October 2025.
On 7 July 2025, the Government published Amendments to the Employment Rights Bill (the 'Bill'). They go further on this issue and include provisions that will ban the use of NDAs relating to harassment or discrimination in the workplace.
More specifically, a new clause 22A of the Bill renders any provision in an agreement between an employer and a worker void in so far as it purports to preclude the worker from making an allegation of, or a disclosure of information relating to:
- 'relevant harassment or discrimination'; or
- the employer's response to the relevant harassment or discrimination, or the making of an allegation or disclosure of relevant harassment or discrimination.
Harassment or discrimination is considered 'relevant' if it consists of (or is alleged to consist of): conduct by the employer, or by another of the employer's workers, or if the victim / alleged victim is the worker themselves or a co-worker.
Both 'discrimination' and 'harassment' are defined by reference to definitions in the Equality Act 2010 – though (somewhat oddly) allegations and disclosures relating to victimization are not expressly covered. Harassment under other legislation such as the Protection of Harassment Act 1997 is also not covered.
The prohibition will cover agreements in a worker's contract or otherwise, so will include contracts of employment and settlement agreements. It will not extend to 'excepted agreements' that the Secretary of State may specify by regulations. It is unclear what such agreements will be, and this is likely to be the subject of significant debate, as campaigners for the prohibition will want to restrict them as much as possible.
While these provisions fall short of an outright ban on NDAs, they constitute a significant prohibition. It is also apparent from the drafting of clause 22A that the protection may be extended further (e.g. to cover those who are not workers).
It seems likely that the provisions will pass into law (albeit with some amendments to the drafting). It is, however, unclear when they will come into effect, as the proposals were not addressed in the Government's implementation roadmap on 1 July 2025. However, in a speech in the House of Commons on 15 September, Peter Kyle confirmed that the subject is a personal priority for him and that the Government ' will be moving as fast as possible to consult on the related secondary legislation and commence the measure'. He also signaled that there will be consultation on the extension of the measures beyond those in employee or worker relationships and on the conditions applicable to 'excepted NDAs'.
Plainly, the aim of this amendment is to prevent those who have suffered discrimination and harassment being silenced. In the Government's press release of 8 July 2025, it stated that the provisions 'will allow victims to speak freely about their experiences and their employer able to support them publicly.' While this is likely to be welcomed by many, there is concern that some employees bringing discrimination and harassment claims prefer to settle them confidentially and that they are being forgotten.
In due course, employers will need to review any template agreements (such as contracts of employment and settlement agreements) that involve NDAs to ensure they are compliant, including in relation to specified carve outs. Further, given that the voiding of NDAs extends to disclosures about the response of the employer to the harassment or discrimination (or the making of the allegation or disclosure), employers will need to consider their responses even more carefully, e.g. in internal investigations.
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.
