Government revives plan to ban NDAs in higher education

Background

On 15 January 2025, the Government confirmed its intention to implement a key provision of the Higher Education (Freedom of Speech) Act 2023—prohibiting English higher education providers from using NDAs to silence allegations of sexual misconduct, bullying, or harassment.

This ban was originally scheduled to take effect from 1 August 2024 but was put on hold in July 2024 to allow for further review. At the time, the Government expressed concerns that some provisions of the Act were disproportionate and did not adequately address hate speech. However, after further consultation with staff, students, and universities, the Government has now confirmed that the NDA ban will go ahead, although other aspects of the Act may be amended or repealed.

NDAs have been widely used by universities and other organisations to prevent individuals from disclosing details of sensitive allegations. While such agreements can protect privacy and confidentiality, they have also been criticised for enabling institutions to conceal serious cases of misconduct. The new ban is intended to increase transparency and accountability in how universities handle allegations of sexual misconduct, bullying, and harassment.

Scope and implementation timeline

The NDA ban applies only to cases involving sexual misconduct, bullying, and harassment within higher education institutions in England. Universities will no longer be able to use NDAs to prevent students, staff, or visiting speakers from disclosing allegations related to these issues.

While the Government has not yet set a new date for implementation, the ban remains a confirmed policy commitment. The Secretary of State for Education has stated that further details will be published in a policy paper, although no specific timeline for publication has been provided. Universities should prepare for the ban to come into force in the near future.

Learning points for employers

Universities and other higher education providers must prepare for the NDA ban by reviewing existing policies and agreements relating to allegations of sexual misconduct, bullying, and harassment. This includes:

• Auditing existing NDAs to ensure compliance with the upcoming legal change;
• Developing alternative dispute resolution mechanisms, such as mediation and formal internal procedures, to manage complaints in a way that protects all parties while maintaining transparency;
• Ensuring policies on confidentiality and settlement agreements align with the new legal framework; and
• Providing training to HR teams and legal departments to ensure they understand the limitations on NDAs and can offer legally compliant alternatives for handling sensitive cases.

While the NDA ban currently applies only to higher education, employers in other sectors should monitor developments closely. A recent amendment to the Employment Rights Bill sought to extend similar NDA restrictions to all cases of workplace harassment, and although it was withdrawn at committee stage, there is scope for this to be reintroduced as the Bill progresses.

Higher education institutions should act now to ensure they are fully prepared for the upcoming legislative change.

For more information or advice, please contact Michael Halsey in our Employment team on 020 7665 0842, or complete the form below.