New restrictions on NDAs in force for English Higher Education Institutions
English higher education providers are now prohibited from using non-disclosure agreements to prevent individuals from speaking about certain types of misconduct.
Background
From 1 August 2025, the Higher Education (Freedom of Speech) Act 2023 (HEFSA) prohibits English higher education providers from entering into non-disclosure agreements (NDAs) with staff, members, students or visiting speakers in connection with a complaint of sexual abuse, sexual harassment, sexual misconduct, or other bullying or harassment.
The government has recently taken steps to further limit the use of NDAs to prevent disclosures of misconduct. In addition to the new ban for higher education providers:
- From 1 October 2025, new rules under the Victims and Prisoners Act 2024 will make any clause in an agreement unenforceable if it tries to stop a victim of criminal conduct from speaking about their experience. This will apply in England and Wales.
- A late amendment to the Employment Rights Bill will void provisions in agreements between employers and employees that prevent disclosures about harassment and discrimination, unless they are part of an excepted agreement. This measure will apply in England, Wales and Scotland, but will be subject to further consultation before coming into force. No implementation date has been confirmed.
What has changed
Any agreement, whether a settlement agreement, contract, or other written arrangement, cannot include a clause that prevents a person from disclosing their own experience of the specified misconduct or from seeking professional or legal advice about it.
The ban applies regardless of whether a complaint has been resolved internally, externally, or is subject to legal proceedings. However, it is not a blanket prohibition on confidentiality clauses: parties may still agree to keep unrelated matters or commercially sensitive information confidential, provided this does not restrict discussion of the misconduct covered by the legislation.
Learning points for employers
English higher education providers should review their template settlement agreements, NDAs, and any other contractual documents to ensure compliance with the new ban. Internal policies and procedures for handling complaints should also be updated to reflect the ban and to safeguard individuals’ rights to speak openly about serious misconduct.
For more information or advice, please contact Khadija Khatun in our Employment team.