NDAs and "excepted agreements": what do we know so far?
Amendments to the Employment Rights Bill would make NDA clauses unenforceable where they prevent a worker from disclosing information about discrimination or harassment, or the employer’s handling of a complaint. The new provisions, if passed, could apply to all workplace agreements, including settlement agreements, and would represent a significant shift away from relying on whistleblowing law to protect such disclosures.
The legislation allows for limited exceptions (referred to as “excepted agreements”) which may permit confidentiality clauses in certain circumstances. These are expected to apply where the agreement is entered into at the worker’s request, although the detail will be set out in future regulations.
While little is yet known about how excepted agreements will work in practice, a recent memorandum from the Department for Business and Trade provides some early direction. It confirms that the government intends to consult with employers and stakeholders before exercising this power, recognising the novelty of the provision and the need to reflect best practice.
Importantly, the memorandum signals that the government expects the conditions for excepted agreements to evolve over time, including to close loopholes and address misuse, and to ensure they operate effectively alongside settlement agreements and other contractual mechanisms already in use.
For more information or advice on preparing for change under the Employment Rights Bill, please contact our Employment team.