Confidentiality redefined: preparing for NDA reforms in the Employment Rights Bill

Background to the reforms

The non-disclosure agreement (NDA) amendments to the Employment Rights Bill have attracted considerable attention since they were first published before the summer recess. Because the Bill leaves so much of the detail to secondary legislation, it has been a case of piecing together the landscape bit by bit to understand what the new rules may look like in practice. Some commentators highlighted the limited scope of the original provisions, which covered harassment and discrimination only. At almost the last opportunity before Royal Assent, the government has now broadened the clause to include failure to make reasonable adjustments. So, what do we know so far, and what is still to unfold?

The story so far

The government’s amendments to the Employment Rights Bill will mark a significant shift in the way confidentiality can be used in the workplace. For the first time, clauses in employment contracts and settlement agreements that attempt to prevent workers from speaking about harassment, discrimination or the failure to make reasonable adjustments will be void.

This is an important change for employers. Confidentiality clauses have long played a role in resolving disputes, balancing the need to protect business interests with the desire to bring closure to difficult situations. The new provisions are designed to prevent their misuse, ensuring that allegations of harassment or discrimination cannot be silenced.

A clearer picture is now beginning to emerge of how these rules will operate. The government’s impact assessment and explanatory memorandum, together with international examples such as Ireland’s recent reforms, shed light on the direction of travel and the likely limits of confidentiality in future settlements. During the recent Commons debate on House of Lords amendments to the Bill, ministers also confirmed that the scope of the NDA reforms will extend beyond harassment and discrimination to cover a failure to make reasonable adjustments for disabled workers. While many details remain to be confirmed, employers should already be thinking about the impact on settlement practice, workplace culture and risk management.

What is the government proposing?

The government’s amendment to the Employment Rights Bill will make any NDA clause void to the extent it seeks to prevent a worker from disclosing information or allegations about workplace harassment or discrimination. This will include not only harassment and discrimination claims under the Equality Act 2010, but also failures to make reasonable adjustments for disabled workers. The restriction applies not only to the conduct itself but also to how the employer has handled any complaint. It will cover confidentiality clauses in both employment contracts and settlement agreements. Other types of confidentiality, such as clauses protecting trade secrets, commercially sensitive data or the financial terms of a settlement, remain enforceable.

To allow for limited flexibility, the legislation empowers the Secretary of State to create “excepted agreements” through secondary legislation. These would be narrow circumstances in which confidentiality can still be agreed. The government’s stated example is where a worker actively requests confidentiality; for example, to help bring closure after a distressing experience. Beyond that, the conditions are not set out in the Bill and will be subject to consultation before being finalised.

Learning from Ireland

The UK government’s impact assessment points to Ireland’s recent reforms as a practical example of how NDA restrictions can be designed. In October 2024, brought in a new law to make NDAs void where they seek to prevent an employee from making a “relevant disclosure”. This covers two key situations. First, it protects an employee who alleges they have been subjected to discrimination, harassment, sexual harassment or victimisation in relation to their employment or prospective employment. Second, it extends protection to disclosures about what happened afterwards, including any action taken by the employer or by the employee in response to that allegation. That means an NDA cannot prevent someone from speaking about the conduct itself, or about how their complaint was handled and any related proceedings.

There are two important exceptions in Ireland. First, where a case is resolved through the Workplace Relations Commission (WRC) mediation process, the new restrictions do not apply. In other words, a settlement recorded under the WRC’s statutory mediation scheme can still include full confidentiality terms. The closest comparison in England and Wales would be an Acas-brokered COT3 agreement, as both involve a statutory body formally recording the terms of settlement. By contrast, private settlement agreements outside the WRC framework in Ireland are subject to strict limits.

Second, Ireland permits “excepted NDAs”, but only under tight conditions. Employers may still propose a settlement in the usual way, but confidentiality will only be enforceable if the employee themselves requests that an NDA is included. In practice, this shifts confidentiality from being an employer-driven term to a worker-led choice. Even then, the NDA is only valid if additional safeguards are met: the employee must receive written independent legal advice (paid for by the employer), be given a 14-day cooling-off period, and the NDA must be drafted in clear, accessible language. It must also preserve the right to disclose concerns to specified professionals such as lawyers, doctors or trade union officials.

The UK Bill does not set out comparable safeguards. The fact that Ireland is referenced in the government’s materials suggests its approach could influence the eventual UK framework and plans are likely to be firmed up following consultation. If a similar model is adopted here, employers could expect that confidentiality will only be available in Acas-brokered settlements or in narrow, worker-led agreements meeting strict statutory conditions.

Other recent UK reforms

Alongside the international comparisons, it is worth noting that similar restrictions are already in place elsewhere in the UK legal landscape. Since 1 August 2025, the Higher Education (Freedom of Speech) Act 2023 has prohibited English higher education providers from using NDAs with staff, students or visiting speakers in connection with complaints of sexual abuse, sexual harassment, sexual misconduct, or other bullying or harassment. Unlike the Employment Rights Bill, there is no “excepted agreement” mechanism in the higher education ban, meaning confidentiality cannot be preserved even at the individual’s request. The reform therefore goes further than the approach proposed in the workplace, reflecting a wider policy direction of encouraging openness and transparency when serious misconduct arises.

From 1 October 2025, the Victims and Prisoners Act 2024 will also make NDAs unenforceable if they attempt to prevent a victim of crime from disclosing information about the offence to specified people and bodies, including the police, lawyers, healthcare professionals, victim support services, regulators, individuals authorised by them, and close family members for support.

Scope and limitations

For now, the only firm detail in the Employment Rights Bill is that confidentiality clauses will be unenforceable if they attempt to prevent disclosures about harassment, discrimination or failures to make reasonable adjustments. Everything else, including the scope of any “excepted agreements”, will be set out in regulations following consultation.

One important limitation remains: the reforms do not expressly extend to victimisation. Separately, clause 23 of the Bill amends the whistleblowing framework to protect disclosures of sexual harassment. This creates an uneven picture: sexual harassment disclosures will be protected through whistleblowing law; harassment and discrimination disclosures will be covered by the NDA provisions (including now in respect of the failure to make reasonable adjustments); but victimisation falls outside the drafting. There is now little opportunity for the government to make further amendments before the Bill receives Royal Assent, so it may be unlikely that the scope of the clause will be broadened further.

When will these provisions come into force?

Ministers confirmed in the Commons debate on 15 September that consultation on the detailed regulations will take place before commencement. No firm timetable has been set. The government’s published implementation roadmap pre-dates the NDA amendments, so it does not give any indication of when these reforms will take effect. What is clear is that the NDA provisions will not be brought into force until after Royal Assent and the outcome of consultation. Employers should therefore plan for change but be aware that commencement dates will depend on the secondary legislation.

There is no indication that these provisions will apply retrospectively. Existing agreements will remain enforceable, but employers will need to update templates once the new regime takes effect. The Bill also gives the Secretary of State power to extend the scope beyond “workers” to cover contractors, trainees and those on work experience, meaning the reach of the rules could be broad.

What will this mean for settlement practice?

One of the biggest unknowns is how the reforms will affect the appetite of employers and employees to settle claims. Ireland has built in a five-year review of its new regime, but there is no data yet on whether removing NDAs has made settlement less attractive in practice.

Some employees may be less willing to compromise if confidentiality cannot be guaranteed. Equally, employers may be cautious about offering settlements where they cannot contain the risk of future disclosures. Against this, settlement will continue to offer important benefits: certainty around claims, a clean break, and the ability to avoid the costs and publicity of tribunal proceedings.

Confidentiality will also not disappear entirely. Non-derogatory clauses should still be permissible if carefully worded, and employers can expect to make greater use of agreed wording so that both sides can explain the outcome in a mutually acceptable way. More openness may also bring cultural benefits, showing that complaints are taken seriously and resolved fairly.

Importantly, if an employee wishes to have confidentiality, they will be able to request an NDA. Provided the statutory conditions for an “excepted agreement” are met, this would allow confidentiality on worker-led terms. The shift is therefore from confidentiality as a default expectation to confidentiality as an option exercised by the employee.

Implications for employers

What employers can be confident of is that broad confidentiality wording will no longer be an option in settlement agreements or contracts. Clauses that seek to prevent disclosure of harassment, discrimination or failures to make reasonable adjustments will be void. Employers will still be able to protect commercially sensitive information, trade secrets, the financial terms of a settlement and, in some cases, reputational interests, provided the wording does not restrict legitimate disclosures.

This raises practical challenges. Because the reforms apply to “information or allegations”, there is no requirement for a tribunal finding or even an internal conclusion that the conduct occurred. Ordinary workplace disagreements could therefore be framed as discrimination or harassment, removing any confidentiality protection. It also remains unclear how worker-led confidentiality requests will operate in practice. One possibility is that employers may set out in a settlement agreement what information they intend to make public, leaving it to the employee to request an “excepted agreement” if they prefer confidentiality - but whether this will be permitted, or whether the request must originate solely from the worker, will depend on the secondary legislation. If the UK ultimately follows Ireland’s model, there may also be a shift towards Acas-brokered COT3s, where full confidentiality remains possible, and away from private settlement agreements subject to tighter limits.

The likely impact is a shift in how settlement discussions are approached. Confidentiality may move from being a standard employer requirement to something that must be justified and, potentially, led by the employee. Employers may also find greater scrutiny of their internal processes and how they handle complaints, with reputational management relying less on NDAs and more on demonstrable fairness and transparency.

Employers do not need to amend template agreements immediately, as the detailed conditions for “excepted agreements” are still to be consulted on. However, now is the right time to take stock of where confidentiality clauses are used, to plan for updating templates once the position is settled, and to begin preparing HR and senior managers for a shift away from broad confidentiality. Clear communication and fair handling of complaints will be central to reputational management once the new rules are in place.

For more information or advice, please contact Gareth Edwards or Jessica Scott-Dye in our Employment team.