The Employment Rights Act 2025 will require any non-disclosure agreements (NDAs) relating to discrimination or harassment within the EqA to meet specified conditions.
NDAs covered
S.24 Employment Rights Act 2025, when in force, will insert a new s.202A Employment Rights Act 1996. Unless conditions in regulations are met (consultation, below), broadly s.202A will ban an agreement between an employer and worker seeking to preclude the worker from alleging ‘relevant’ discrimination or harassment within the EqA, or from making a disclosure of information relating to it. Victimisation is not included.
The new provision also includes allegations or disclosures relating to the employer’s response to discrimination/harassment, or to an allegation etc. It includes a settlement agreements having the stated effect.
‘Relevant’ discrimination or harassment within s.202A is not limited to discrimination etc by the employer (or one of its employees) against the worker entering the NDA. It also includes discrimination etc by a third party (eg a client) against the worker who enters the NDA, or against another worker of the employer; or discrimination etc by the employer (or one of its employees) against someone else, such as a customer.
Consultation
Regulations will be able to specify exceptions to the ban. The UK government has issued a consultation on these: Make Work Pay: misuse of non-disclosure agreements (NDAs) (gov.uk), April 2026. It sounds like the exceptions may be wide – in the sense of NDAs generally being permitted provided that, for example, the individual has independent advice and a cooling off period, and any obligations are time-limited. Questions on which the government is seeking views, and government proposals (subject to consultation), include the following:
- The government seeks views on whether the employer should be able to suggest confidentiality. One approach would be to prevent employers from suggesting this, to minimise the risk of coercion, only allowing an excepted agreement to be entered into at the request of the worker.
- The government is also seeking views on whether regulations should require a time-limit on confidentiality obligations, and a maximum time-limit.
- Before entering into an ‘excepted agreement’ (ie an agreement permitted by the regulations), the worker must have received independent advice in writing on specified matters.
- An excepted agreement must include an explicit right for a worker to withdraw from it without penalty within 14 days (a ‘cooling off period’).
- The government asks whether the worker should be allowed ‘flexibility to waive the cooling off period’.
- A further alternative is to give workers a statutory period to consider a proposed NDA before they agree to it (a ‘review period’), instead of – or perhaps as well as – a cooling off period.
- The government is seeking views on whether regulations should require an excepted agreement to be written in standard, plain language.
- It should only be possible to enter into an excepted agreement if the incident of relevant harassment or discrimination has (or is alleged to have) already taken place.
- A worker who has signed an excepted agreement should be able to make permitted disclosures to groups or individuals specified in the regulations. The consultation sets out a proposed list of groups and individuals. The government also asks whether individuals should be permitted (not required) to disclose to prospective employers. See in the document Chapter 3: Permitted disclosures.
- The government also asks about – at some point in the future – extending the new s.202A to cover other workers, such as individuals working for someone that is not their employer, or those on work placement, or NHS workers if not already covered as employees (eg many GPs and dentists). See in the document Chapter 4: Application to other individuals.
Coming into force
S.202A seems likely to take effect sometime in 2027. A government factsheet (below) just says the changes will be commenced after consultation, with a commencement date to be announced in due course.
The consultation paper says that only agreements made after the commencement of s.202A will be covered, not existing agreements.
Links
- Make Work Pay: misuse of non-disclosure agreements (NDAs) (gov.uk) – consultation, April 2026
- Non-Disclosure Agreements – NDAs (pdf, gov.uk) – government factsheet on the change
- Ban on NDAs covering harassment and discrimination at work (in Daniel Barnett email), 8 July, 2025 – but the new s.202A does now include failure to make reasonable adjustments
- Government publishes its impact assessment on proposed ban on gagging clauses in discrimination and harassment cases (also in Daniel Barnett email), 23 July 2025
- Non-disclosure agreements (NDAs) in workplace harassment and discrimination situations (lewissilkin.com), 4th Dec, 2025.
