Government consults on restricting the misuse of NDAs in harassment and discrimination cases

Background

On 15 April 2026, the government published its latest consultation part of its wider “Make Work Pay” reform. The consultation addresses the government's proposals on regulations to prevent the misuse of non-disclosure agreements (NDAs) in workplace harassment and discrimination cases.

These proposals build on the Employment Rights Act 2025, which will introduce a new provision rendering NDAs unenforceable where they seek to prevent workers from speaking about harassment, discrimination, or an employer’s response to such issues. The intention is to address concerns that NDAs have been used to silence individuals and to drive cultural change, while still preserving their use in appropriate commercial contexts.

The consultation also confirms that the NDA reforms will take effect in 2027, although no firm date has yet been confirmed.

Proposed framework and key conditions

The legislation will allow NDAs to remain enforceable only where they fall within a defined category of “excepted agreements". The consultation focuses on what conditions should apply for an agreement to qualify.

The government proposes that workers must receive independent advice in writing on the scope and limitations of any confidentiality clause. This would extend beyond the current requirement for workers to receive independent advice to enter into settlement agreements and apply more broadly. The government is considering whether an Acas conciliator may be able to provide the independent advice for the purposes of the NDA regulations. Workers would also need to confirm in writing, after receiving advice, that they wish to enter into the agreement, with the aim of reducing any risk of coercion.

A mandatory 14-day cooling-off period is also proposed, during which the worker could withdraw from the agreement without penalty. This is likely to have practical implications for settlement negotiations, particularly where agreements are reached close to tribunal hearings.

Other suggested safeguards include requiring agreements to be provided in an accessible written format, limiting NDAs to past (rather than future) acts of harassment or discrimination, and potentially introducing time limits on confidentiality obligations.

The consultation also sets out a detailed framework of “permitted disclosures”, allowing workers to share information with specified individuals and bodies, including regulators, legal advisers, medical professionals, trade union representatives and close family members, for defined purposes.

Scope and future extension

The current proposals apply to workers as defined in existing legislation, but the government is seeking views on extending protections to a wider group. This could include agency workers, secondees, trainees and, potentially, certain self-employed individuals who may be vulnerable to the misuse of NDAs.

The consultation also confirms that further reforms surrounding the current whistleblowing framework are expected, with a separate consultation anticipated later in 2026.

Learning points for employers

These proposals, if implemented in their current form, will significantly reshape the use of NDAs in employment documentation, particularly in settlement agreements. Employers should begin to anticipate a more structured and formalised process, with greater emphasis on informed consent and transparency. The proposed cooling-off period is likely to affect the timing and certainty of settlements, especially in litigation scenarios. There is also a clear direction of travel towards limiting the use of NDAs in pre-dispute situations and increasing scrutiny of how confidentiality clauses are presented and agreed. Employers may wish to review their current template agreements and negotiation practices to ensure they are aligned with this evolving framework and to consider how best to manage the practical implications once the changes come into force.

Those who wish to take part should do so before 8 July 2026.

For more information or advice, please get in touch with Elizabeth McTeigue in our Employment team.