NDAs in the UK – the current legal landscape
At a glance
This employment law guide details the current legal position on NDAs in the UK, and the regulatory rules that might, depending on the circumstances, limit the use and scope of NDAs or make they void, particularly in relation to allegations of discrimination and harassment under the Equality Act 2010. It also outlines forthcoming anticipated changes to the law on NDAs and the introduction of excepted NDAs.
Common Law
Generally speaking parties are entitled to contractually agree confidentiality terms subject to any statutory basis or legal duty that would permit disclosure.
The common law recognises there is a public interest that confidences should be preserved but that public interest may be outweighed by some other overriding public interest that favours disclosure. This legal test is to be considered in the context of the Article 10 right (freedom on expression) and the Human Rights Act 1998. There will need to be exceptional circumstances based on an overriding public interest, for a court to find an otherwise binding confidentiality agreement can be breached in the public interest.
How are NDA’s used currently?
NDAs in Employment Contracts
Non disclosure agreements (‘NDAs’) and confidentialty clauses are used in employment contracts to protect confidential information, such as trade secrets and sensitive commercial information about the organisation.
The Trade Secrets (Enforcement, etc.) Regulations 2018 provides a statutory footing for the protection of trade secrets (as defined) as does the Copyright and Rights in Databases Regulations 1997 concerning databases – but those regulations are outside the scope or purpose of this guide, which is focussed on NDAs relevant to the disclosure of information by workers concerning harassment and discrimination (under the Equality Act, criminal law or otherwise).
NDAs in Settlement Agreements
NDAs and non-disparagement clauses are commonly used in settlement agreements, where the employee agrees to settle employment related claims. These NDAs commonly require the employee not disclosue the existence or terms of the settlement agreement or the circumstances leading up to it, or to disparage or badmouth the employer or its people (e.g. employees, workers, directors, shareholders).
For a settlement agreement to be binding it must satisfy certain statutory conditions, including a requirement that the employee has received independent legal advice from a qualified adviser, such as a solicitor. However, the conditions for a binding statutory settlement agreement do not touch upon confidentialty terms or NDAs.
#MeToo
With pressure from campaigners, and the #MeToo movement, NDAs that go too far, or ‘gagging clauses’ as sometimes described, have come under the scruitiny of legislators and regulators, amongst others, due to concerns they deter victims of crime and unlawful harassment from disclosing details of to the authorities.
Permitted Disclosures
Recent developments in legislation alongside regulators introducing regulatory rules and guidance on NDA use, has resulted in settlement agreements drafted by solicitors setting out a list of ‘permitted disclosures‘ that an employee can still make notwithstanding their NDA. But these permitted disclosures are typically limited to allowing disclosures to a limited list of organisations and persons for permitted reasons, such as to the police, regulators, professional advisers bound by a duty of confidentiality, medical advisers and counsellors, and immediate family provided they agree maintain confidentiality. These exceptions to an NDA, i.e. permitted disclosures, do not typically allow the worker to speak to the press or media or release information into the public domain.
The list of permitted disclosures has been expanded in 2025. The Victims and Prisons Act 2024 introduces an expanded list of permitted disclosures (see below) and a sector specific law change allows higher education staff, amongst others, makes void any NDA insofar as it applies to harassment and bulllying concerns.
NDA Law forthcoming changes – a brave new world
Further changes are in the pipe line, when the Victims and Courts Bill becomes law, allowing victims of crime to speak out for any purpose and to any person about crime they have experienced. This will be a clear change in policy – from allowing disclosures to a restricted list mainly consisting of the authorities, to allowing disclosure into the public domain. The Employment Rights Bill, when introduced and supported by new regulations, will make NDAs void in relation to worker complaints of harassment and discrimination and the employer’s response, unless they meet certain conditions to qualify as an excepted NDA. The section below ‘Proposed NDA reform’ covers these Bills in more detail.
Current Statutory NDA Laws
At a glance: Any NDA will be void insofar as it purports to prevent whistleblowing as defined in the legislation.
This Act inserted an amendent into the Employment Rights Act 1996 (Section 43J(1))that makes any provision in an agreement void in so far as it purports to preclude the worker from making a protected disclosure (i.e. a whistleblowing disclosure).
In some instances, a complaint by a worker about harassment or discrimination may qualify as a protected [whistleblowing disclosure] but not always.
The techical legal definition of whistleblowing is multifaceted and complex, meaning individuals may not be confident they are protected as a whistleblower and can lawfully make a disclosure without risking a breach of their NDA in their settlement agreement.
Disputes about whether a disclosure is a qualifying disclosure often revolve around whether the worker had a reasonable belief the disclosure was made in the public interest and the information tends to show one of the listed concerns (e.g. criminal offence, miscariage of justtice, health and safety issue endangering life, environmental damage or likely damage, a breach of a legal obligation and/or deliberate concealment of one or more of these concerns).
Having to seek legal advice on whether a contemplated disclosure is a qualifying protected disclosure may itself be a barrier to many due to the costs involved. These issues may explain the policy decision to introduce a specific law making NDAs generally void insofar as they purport to prevent workers speaking out about allegations of harassment and discrimination unless they have entered into an excepted NDA.
At a glance: This Act makes any NDA void insofar as it purports to prevent certain permitted disclosures about crime by victims and witnesses of crime. This Act does not allow a disclosure where the primary purpose is to release the information into the public domain.
This applies to England and Wales only. Section 17 of this Act makes any NDAs entered into on or after 1 October 2025 void to the extent that it purports to prevent disclosure by a victim of crime (or person who reasonably believes they are a victim of crime) from disclosing information to listed persons and enties about a suspected crime for listed purposes.
The list of permitted entities and purposes includes: law enforcement, e.g. the police, a qualified lawyer (for the purpose of seeking legal advice), a regulator, regulated professional such as doctors and nurses, victim support provider, the victim’s child, parent or partner, for the purpose of seeking support and advice, or any person authorised to receive information ob behalf of any of these categories of person for the same purposes.
Importantly:
- it will not be a permitted disclosure if the primary purpose is the release of the information into the public domain or another purpose not listed as permitted in the legislation;
- other information disclosed that is not relevant to the criminal conduct, for example commercial information, will not be a permitted disclosure; or
- it will not be a permitted disclsure if it is made to a person not contained in the list of permitted persons.
For the typical employment related NDAs, a victim will be dinfed as including both persons subjected to criminal conduct and witnesses of criminal conduct – who have suffered physical, mental or emotional harm and economic loss.
Further permitted diclosures are anticipated to be added to the list, once new regulations come into force, allowing disclosures to:
The Criminal Injuries Compensation Authority or a court or tribunal in relation to a decision by the Authority, for the purpose of a claim for compensation in relation to relevant conduct under the Criminal Injuries Compensation Scheme or the Victims of Overseas Terrorism Compensation Scheme; and
extend the definition of lawyer to include a registered foreign lawyer registered with the Law Society pursuant to the Courts and Legal Services Act 1990.
The Ministry of Justice published guidance here
This is Only applicable to the Higher Education (‘HE’) sector. Section 1 of the Act introduced from 1 August 2025 a new section A1 (11) into the Higher Education and Research Act 2017 placing a legal duty on HE governing bodies to ensure a HR provider:
‘does not enter into a non-disclosure agreement with [members of staff, student, members, visiting speakers] in relation to a relevant complaint [i.e about misconduct or alleged misconduct of sexual abuse, sexual harassment or sexual misconduct, and other forms of bullying or harassment] in relation to a relevant complaint made to the provider by the person (and if such a non-disclosure agreement is entered into it is void)”
Section 12 of the Act defines an NDA.
This legislation is differentiated by the following:
- it applies to higher education only,
- it applies to other forms of bullying and harassment, not only sexual harassment.
- the Act goes beyond making relevant NDAs void, it creates a positive duty on governing bodies not to use them.
- It applies not only to workers, but students and visiting speakers.
The Act can be found here.
Proposed NDA reform
The UK government announced on 21 October 2025 that it would introduce an amendment to ensure no NDA would be able to silence a victim or direct witness of crime from speaking to anyone about that crime, for any purpose. This will mean, for example, a disclosure could be made to the press, media, friends or anyone else, for any purpose, about the relevant crime, going further than the list of permitted disclosures allowed by section 17 of the Victims and Prisoners Act (sdee above). If and when the amendment to the Victims and Courts Bill is passed and comes into force, it is envisaged section 17 of the Victims and Prisoners Act will be repealed.
What does this mean for NDA’s?
NDAs in settlement agreements and employment contracts will be void to the the extent they would otherwise prevent victims and direct witnesses of crime speaking out to anyone about that crime. Even Excepted NDAs (see section below ‘Empoyment Rights Bill’) will be limited in their scope to ensure these victims can still speak out about the criminal behaviour they have suffered.
Settlement agreements, employment contract templates and potentially other policy document will need to be reviewed and updated.
At a glance: This Bill will introduce an amendment into the Employment Rights Act 1996 making an NDA void in relation to information about work-related harassment and discrimination unless it qualifies as an excepted NDA. We await draft regulations that will define an excepted NDA but we have indications from government (see below).
The draft amendment (new section 202A) will make any provision in an agreement between an employer and a worker of the employer (whether a worker’s contract or not) void unless it is an excepted NDA in so far as it purports to preclude the worker from making—
(a) an allegation of, or a disclosure of information relating to, relevant
harassment or discrimination, or
(b) an allegation, or a disclosure of information, relating to the response
of an employer of the worker to—
(i) relevant harassment or discrimination, or
(ii) the making of an allegation or disclosure within paragraph (a).
References to harassment and discrimination refer to the Equality Act 2010: sections 26 (1), (2) and (3)[harassment], 13 [direct discrimination], 15 [discrimination arising from disability] and 19A [indirect discrimination], of the Equality Act 2010.
Breaking this section down the following is noteworthy:
- unless there is an excepted NDA, there is no limitation on the identity of the person the information about harassment and discrimination (as defined) can be disclosed to, i.e. it could be disclosed to anyone, including business contacts, clients, the press or wider public, including via social media.
- unless there is an excepted NDA, the worker may make a disclose about the employer’s ‘response’ to the alleged discrimination or harassment. This means workers may disclose information about the way the employer has responded to a grievance, including correspondence, such as the greivance outcome letter.
These changes in the Employment Rights Bill, which seem very likely to be come into law, warrant careful consideration by employers, to ensure not only that their settlement agreements are compliant, but their approach to harassment and discrimination, grievances and settlement discussions. When the employer’s response is potentially no longer confidential, an employer’s poor handling of a complaint of harassment or discrimination gives rise to a new and serious risk reputational harm.
What is an Excepted NDA?
The legal defintion of an excepted NDA will be set out in regulations yet to be published, after the Bill comes into law.
We have some hints though:
- The Department for Buinsess and Trade issued an impact assessment (‘IA‘) (17 July 2025 which observed:
“NDAs in the context of harassment and discrimination will not be completely prohibited, with regulations expected to set strict conditions for NDAs to still be validly made (eg. if a worker requests one). Given the intention for the regulations is to ensure workers can still request NDAs the option for confidentiality remains and may preserve some of the incentive to settle.”
and
“government will set out in regulations a narrow set of exemptions, with the intention to allow workers to still request confidentiality (the conditions for excepted NDAs will be outlined in regulations). This change shifts the control over NDAs to the worker, potentially strengthening their bargaining position meaning confidentiality becomes a benefit they can offer, rather than a condition imposed on them.”
The IA’s assessed the impact of the NDA changes on tribunal claims, reputational risk and internal processes:
Employment Tribunals –
“By making it more difficult for employers to use NDAs, fewer allegations of harassment and discrimination may be resolved through settlement agreements. This, in turn, may lead to an increase in more cases being brought to Acas and the Employment Tribunals. Businesses would incur legal costs to defend these claims, as well as costs associated with early conciliation settlements and employment tribunal awards”
Reputational Damage –
“may lead to an increase in public disclosure of harassment and discrimination allegations. This can create a cost for businesses due to reputational damage…. Reputational damage could lead to loss of trust from clients and consumers, which can result in loss off business. Further, it can cause uneasiness amongst workers who may leave as a result of the reputational damage. This could potentially cause increased recruitment costs, particularly where there is already difficulty hiring externally due to the reputational damage.”
Operational Processes –
“If NDAs are no longer readily available to resolve cases of harassment and discrimination confidentially, businesses will likely need to adapt their operational processes, particularly concerning internal investigations. Employers will have a greater need to conduct proper internal investigations to ensure allegations are resolved.”
“While many companies may already conduct investigations even with a signed NDA, the risk of public disclosure under the new policy could encourage some employers to enhance the robustness of their procedures. This may include ensuring staff are adequately trained and resourced to manage more rigorous or frequent investigations.”
Regulatory guidance on NDAs
The SRA is the regulator that authorises and regulates solicitors. In 2018 is published a warning notice, updated on 6 August 2024, for solicitors. It applies to NDAs found in settlement agreements and reminds solicitors of their professional obligations. In particular, the SRA states:
“NDAs are not used to prevent reporting to us or to other regulators and law enforcement agencies or to prevent disclosures which are protected by law.
We therefore consider that NDAs would be improperly used if you sought to use an NDA as a means of preventing, or seeking to impede or deter a person from:
- co-operating with a criminal investigation or prosecution
- reporting an offence to a law enforcement agency
- reporting misconduct, or a serious breach of our regulatory requirements to us, or making an equivalent report to any other body responsible for supervising or regulating the matters in question
- making a protected disclosure under the Public Interest Disclosure Act 1998
- making any disclosure required by law
- making a proper disclosure about the agreement or circumstances surrounding the agreement to professional advisers, such as legal or tax advisors and/or medical professionals and counsellors, who are bound by a duty of confidentiality.
NDAs must not include or propose clauses known to be unenforceable or use warranties, indemnities, and claw back clauses in a way which is designed to, or has the effect of, improperly preventing or inhibiting permitted reporting or disclosures being made. For example, asking a person to warrant that they are not aware of any reason why they would make a permitted disclosure, in circumstances where a breach of warranty would activate a claw back clause.
“NDAs or other terms in an agreement which contains an NDA, must not stipulate, or give the impression to the person expected to agree the NDA, that reporting, or disclosure as set out above is prohibited”
The SRA notice makes clear it is wrong to include or propose NDA clauses known to be unenforceable. Similarly, solicitors have a duty not to take unfair advantage and this may include ensuring they do not apply undue pressure or use inappropriate oppressive or aggressive tactics, such as artificial time limits to agree to the terms of an NDA.
It is important that a setltement makes clear permitted disclosures that can still be made despite the NDA. Solicitor drafted or reviewed settlement agreements are expected to meet these standards. Not all settlement agreements will be prepared by a solicitor, or the employer might re-use an old or out-dated template, that falls short of the above. This will mean the employee’s solicitor will need to request amendments, which results in delay and further costs.
A starting point for solicitors acting for employers will often be to engage with their client to enquire whether an NDA is approporiate
The full SRA notice is here: https://www.sra.org.uk/solicitors/guidance/non-disclosure-agreements-ndas/
Other guidance on NDAs
In October 2019 the EHRC published its guide ‘The use of confidentiality agreements in discrimination cases. It sets out (page 32) the potential for an NDA to amount to a criminal offence of perverting the course of justice, if used to prevent a worker speaking to the police about an offence.
Acas updated its guidance on NDAs on 1 October 2025. See here
Consultations and Inquiries related to the use of NDAs for workers.
Women and Equalities Committee Inquiry on use of NDAs in discrimination cases (November 2018).
Women and Equalities Committee Report on use of NDAs in discrimination cases (June 2019).
UK (Conservative) Government consultation on Confidentiality Clauses [NDAs](April 2019).
UK (Conservative) Government response to consultation on Confidentiality Clauses [NDAs] (April 2019).
Legal Service Board call for evidence on NDAs (May 2023).
Women and Equalities Committee report on Misogyny in music [section 6, NDAs] (January 2024).
Legal Service Board summary of evidence report (Feb 2024) and evidence submitted by organisations.
Women and Equalities Committee second report on Misogyny in music (June 2025).
Further reading
Law Gazette Article – ‘£250 advice from ‘shoddy’ lawyers forces employees into silence, MP claims’ (April 2025)- Business minister Justin Madders quoted as saying NDA changes shoud not ‘prevent people from signing an NDA if they want to’.
DISCLAIMER: The contents of this page are for guidance only, and do not constitute legal advice (nor are they intended to be legal advice). You should consult a professional legal adviser, e.g. a specialist employment solicitor, about your particular issue, should you need legal advice.