Consultation launched on NDA ban

The government has opened a consultation on measures in the Employment Rights Act that will prevent the misuse of non-disclosure agreements (NDAs) in cases of workplace harassment and discrimination.

The consultation will consider the conditions that need to be met for an NDA to still be valid (known as an 'excepted agreement') in such cases - for example, if an employee requests the NDA or if they have received independent advice on its contents.

It also seeks to understand the individuals or bodies workers can speak to about the harassment and discrimination if they are covered by such excepted agreements, such as a qualified lawyer or medical professional.

Finally, the government is looking for views on whether it should expand the ban on NDAs to self-employed individuals, beyond current definitions of employee and worker.

The government confirmed last year that the Employment Rights Act, which received Royal Assent before Christmas, would ban employers from using NDAs to "gag" workers who have suffered from harassment or discrimination.

The ban was initially tabled by former cabinet minister Louise Haigh, who described the existing system as "two-tier", with some businesses using the agreements against workers who may not fully understand their significance.

A campaign in the hospitality sector, Can't Buy My Silence, found that NDAs often disproportionately affected women and low-income workers.

An NDA ban is already in place in universities thanks to the Higher Education Act 2023, which prevents universities from entering into these agreements with staff, students or visiting speakers in cases of complaints of sexual misconduct or harassment.

Restrictions on the use of NDAs for victims of crime were also introduced on 1 October 2025.

The consultation states: "While NDAs can have legitimate purposes, they should not be used to take unfair advantage of workers. Unfortunately, evidence has emerged in recent years that some employers have been doing just that.

"This evidence shows that an imbalance of power between employers and workers has been exploited by some employers through the use of NDAs, fostering a culture of silence and impunity. We cannot allow this to continue.

"NDAs can also have impacts on the health and wellbeing of workers by preventing them from discussing their experiences with others, such as support services."

The government is proposing that an updated Section 202A of the Employment Rights Act 1996 be inserted into the Employment Rights Act 2025, to enforce the new regulations.

Paul Nowak, general secretary of the TUC, said that too many women had been silenced by "rogue employers" through NDAs.

"It's plain wrong. Those reporting sexual harassment, bullying or discrimination should feel they are able to do so without fear of repercussions.

"That's why it's welcome that the government is consulting on how to tackle this and ensure a culture of transparency and accountability.

"Women must have their voices heard and bad bosses must not be allowed to shirk responsibility for tackling and eradicating sexual harassment, discrimination and bullying at work."

Georgina Calvert-Lee, a barrister at Bellevue Law, said the provision is expected to come into force in October this year.

"In the meantime, the government has today opened a consultation on whether this prohibition should also apply to other individuals who are not "workers", for example, volunteers or job applicants. Importantly, it also asks how this provision will be enforced in practice, including whether any NDAs should be permitted as an exception to the general prohibition," she explained.

"This latter question has to be approached with care. The government has suggested that NDAs should be permitted where requested by the worker after they have received independent legal advice, paid for by the employer. This risks creating an exception that engulfs the rule.

"Given the obvious imbalance of power between an employer and a worker, there would be little to stop an employer pressuring a worker to 'request' an NDA, after taking advice from the lawyer the employer has paid for (and sometimes found).

"Many cannot afford to pay the legal fees required to obtain proper advice on their own circumstances unless they are lucky enough to be served by a lawyer willing to waive over 75% of their usual fees."

James Townsend, head of employment and partner at Payne Hicks Beach, urged parliament to consider introducing a presumption of anonymity on claimants and respondents, unless they choose to waive this, if cases make it to tribunal.

"Such an approach would no doubt encourage claimants to come forward with greater confidence and end the naming of innocent parties," he said.

The consultation closes at midnight on 8 July 2026.