Breaking the silence

Eight years after Zelda Perkins broke the non-disclosure agreement (NDA) that prevented her talking about Harvey Weinstein, the government has taken action to ban employers from using NDAs in cases of workplace harassment and discrimination.

Regulatory risks

NDAs are routinely used as standard terms in contracts and settlement agreements to protect commercially sensitive information and the reputation of organisations. However, following the #MeToo movement, which shone a light on the use of NDAs to suppress allegations of sexual harassment, the Solicitors Regulation Authority (SRA) issued guidance (published in 2018 and amended subsequently) warning solicitors and law firms about their unethical use. This highlighted concerns about NDAs being used to inhibit the proper reporting of criminal or regulatory offences, or – and which would be unenforceable under section 43J of the Employment Rights Act 1996 – to prevent the making of protected disclosures under whistleblowing legislation. The SRA also made it clear that victims should be free to speak openly in order to seek advice, support or medical treatment.

The SRA’s guidance underlined the regulatory risks for lawyers around NDAs, which, if misused or used without thought, can perpetuate the inherent power imbalance between employer / worker and perpetrator / victim, and prevent the proper investigation of wrongdoing, allowing perpetrators to avoid accountability and harmful workplace cultures to thrive. The guidance also brought into play a variety of the SRA’s professional obligations: not to take unfair advantage; to cooperate with – and not to prevent information being provided to – law enforcement and regulatory bodies; and to act with integrity and in a way which upholds public trust and confidence, and the rule of law.

The SRA’s warning notice followed the onset of the #MeToo movement, but created a situation where those regulated by the SRA were specifically precluded from advising in circumstances that led to an NDA. This was in breach of the warning notice but nonetheless might (depending on the circumstances and whether, for example, it prevented a protected disclosure) be enforceable by court proceedings. Those that were not regulated (including human resource (HR) professionals working for employers) were not so restricted. Ethics is not, of course, the same thing as simply obeying the law – legal regulators play a different role from the courts and look more widely than where legal lines are, or are not, drawn – but the position was unsatisfactory.

Legislative changes

Despite the regulatory momentum created by the warning notice, tangible changes to the law remained elusive for several years, with NDAs continuing to feature in employment contracts and settlements across numerous industries. Campaigners and legal commentators repeatedly called for firmer legislation, arguing that reliance on professional ethics and guidance was insufficient.

The gradual shift in public opinion, catalysed by survivors’ testimony and advocacy by organisations specialising in workplace rights, prompted renewed pledges from government officials to review and tighten legal restrictions on NDAs. Yet, each policy consultation seemed to yield only incremental adjustments.

Against this backdrop of ongoing debate and piecemeal reform, legislative efforts began to concentrate on specific sectors, particularly education and public services, where the use of NDAs to silence allegations of sexual misconduct and bullying drew particular condemnation.

The government’s wide-sweeping Employment Rights Bill (ERB), introduced in October 2024, was silent on the matter. Instead, from 1 August this year, it took steps to prohibit the use of NDAs in higher education settings in relation to sexual misconduct, bullying and harassment (under the Higher Education (Freedom of Speech) Act 2023, which added a new part – A1(11) – to the Higher Education and Research Act 2017) and, from 1 October 2024, to strengthen protections for victims of crime by making relevant clauses in NDAs unenforceable (under section 17 of Victims and Prisoners Act 2024).

New government proposals

On 7 July 2025, the government tabled amendments to the ERB to prevent the use of NDAs to conceal harassment and discrimination in all workplaces across England, Wales and Scotland.

The new provisions have been added into the package of reforms in part 1 of the ERB aimed at strengthening protections against harassment and discrimination. These include important changes to the new anticipatory duty in the Equality Act 2010, introducing a power to make regulations setting out the reasonable steps that should be taken to prevent sexual harassment.

Crucially, they introduce a new section 202A into the Employment Rights Act 1996, which acts to void any agreement insofar as it purports to preclude a worker from making allegations or disclosures of information relating to ‘relevant’ harassment or discrimination. Harassment or discrimination is ‘relevant’ where the victim (or alleged victim) is a worker (either the person making the allegation / disclosure or a fellow worker at the same employer), or this consists of (or is alleged to consist of) conduct by the employer or another fellow worker. The protections therefore cover disclosures by victims suffering from mistreatment at work, as well as any colleagues who witness this.

They also expressly cover disclosures about the employer’s response – whether to the underlying allegations of harassment or discrimination, or to the allegations being made – ensuring that workers can speak out about how employers have addressed their concerns, and any adverse consequences they have suffered as a result of raising them.

Under the new provisions, the secretary of state will be able to make regulations specifying ‘excepted agreements’ that will be exempt from the ban; they will also be able to prescribe the circumstances in which certain provisions in those excepted agreements will be void. In addition, these regulations will be able to extend the definition of ‘worker’ to self-employed contractors, and to those doing work experience or training.

The new provisions have not yet been made law, although at the time of writing have passed through the House of Lords (the third reading took place on 3 September 2025). Given they have been backed by government and have cross-party support, there is no reason to believe they will not pass smoothly through the final stages in the House of Commons before receiving royal assent.

Effect of the ban

In one sense the new provisions are bold and wide: they bring in a blanket ban across agreements of any kind, including settlement agreements and workers’ contracts. However, they do not prohibit NDAs wholesale. The government has recognised the importance of the use of NDAs more widely to protect business interests and prevent the disclosure of sensitive and confidential commercial information. To this end, the new ban only operates to void the relevant clauses, leaving the rest of the agreement to stand. Equally, it does not cover all prohibited acts in the Equality Act 2010 (for example, the failure to make reasonable adjustments) or harassment outside the workplace or employment relationship.

Rather, the ban is focused on achieving a very specific aim: the impact assessment on the amendment, published on 17 July, is clear that the government’s goal is to reduce the power imbalance between employers and employees, and change business culture to reduce harassment and discrimination. It cites the differential impacts on certain protected groups, and evidence, such as the 2019 report from the UK Women and Equalities Committee, of the harmful impacts of NDAs on the wellbeing of individuals and those around them, and on their job prospects and future careers.

The impact assessment recognises concerns picked up in commentary on the ERB; that a blanket ban could remove the rights of those victims who would prefer confidentiality. And that without the ability to impose or negotiate confidentiality clauses to protect their reputation, employers will be less likely to settle claims or to offer higher settlement payments, leading to lengthier processes, fewer cases being resolved through settlement agreements and more litigation before the Advisory, Conciliation and Arbitration Service and the employment tribunal. While the assessment doesn’t quantify this, it highlights the potential impact, not only on victims and witnesses, but on employers and their HR and legal teams – and on the already overburdened employment tribunal system and the public purse.

However, the impact assessment signals that the regulations, which define excepted agreements, will reserve the right for workers to request confidentiality (although outside of this there is no indication of what they will cover). This follows the model in jurisdictions such as Ireland (under the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024, which came into force in November 2024), the US (California, Silenced No More Act, 1 January 2022) and certain provinces of Canada (Prince Edward Island, Non-Disclosure Agreements Act 2021 and Ontario, Bill 26 (July 2023)), and preserves the option of confidentiality for workers, improving their bargaining position and providing, in appropriate cases, incentives for employers to settle.

These arguments rather miss the key public policy goal to be achieved by a blanket ban; to drive a change in workplace culture and prevent unacceptable behaviours occurring in the first place. The aim is that this will act as a deterrent. If they are unable to impose a gagging clause, potential perpetrators will be more likely to watch their behaviour. And if employers are unable to cover up problems and how they have handled them, they will need to make sure they demonstrably address and resolve allegations – and that they carry out robust internal investigations which ensure that those raising concerns are treated fairly and have confidence in the process.

Changing workplace cultures

Critically, employers will have greater incentives to take steps to identify and address the root cause of issues and to actively prevent harassment and discrimination. This has the potential to build on the new preventative duty which, since it was brought in last October, requires employers to mitigate the risk of sexual harassment and, subject to regulations under the ERB, will require specific steps to be taken (such as risk assessments, published policies and plans, and around reporting and complaints handling).

Moreover, if workers feel able to speak out, this will promote a positive and supportive workplace environment. This is a priority for the legal sector, in which concerns surrounding workplace culture and wellbeing have been a key topic for debate in recent years. For example, the charity LawCare reported that 1 in 5 respondents to its 2020/21 Life in the Law survey had experienced bullying, harassment or discrimination; and, in 2023, it reported a 95% increase in the number of people saying that workplace bullying, harassment or discrimination was the primary reason for seeking its support. The SRA’s February 2022 thematic review on workplace culture indicated that around a quarter of respondents felt uncomfortable raising concerns with their employers about unacceptable behaviours at work.

This has been a particular focus for the SRA, which published guidance in 2022 making clear the importance of promoting a ‘speak up’ culture. It also highlights the responsibility of law firms to protect and support employees to prevent inappropriate and counter-inclusive behaviours, and to create and maintain the right culture and environment for the delivery of competent and ethical legal services. This was followed, in 2023, by new rules requiring solicitors and firms to treat colleagues fairly and with respect, not to bully, harass or discriminate against them, and for managers to challenge behaviour that doesn’t meet this standard. This can be seen as something of a landmark change, given that this is the first time the SRA has made rules speaking to the importance of the workplace and working relationships.

The simplicity of the blanket ban is perhaps key to its chances of success – removing the risk for lawyers of inadvertently falling the wrong side of their ethical obligations. The SRA’s August 2023 thematic report on the use of NDAs in workplace settlement agreements demonstrated that certain common practices risked clauses being introduced that had the effect, if not the intention, of silencing victims. It called out the lack of understanding or training around where the ethical boundaries lay, the use of NDAs as routine without considering their relevance in an individual case, and the over-reliance on precedents and templates (84% of its sample) with the risk of incorrect or out-of-date wording being used. This is exacerbated by the imbalance of power in the settlement process – with templates and timelines dictated by the employer, placing employees under pressure to accept terms.

What’s next?

There is currently no published timeline for the introduction of this ban, but it appears likely to come into force sometime next year. Once in place, law firms and legal departments will need to prepare their clients and organisations; standard wording in template contracts and settlement agreements will have to be reviewed and updated, as will HR policies and processes.

However, as well as the need to understand and implement technical changes, the legislation demands a shift in mindset and approach from employers. In its September 2024 report, the Chartered Institute of Personnel and Development reported that 48% of employers were supportive of a statutory ban on NDAs in cases of harassment and discrimination. This could be seen as an opportunity for employers to focus their attention on identifying and addressing the risks of poor behaviour, encouraging workers to speak out and driving real change in workplace culture. The legislative change also removes the unsatisfactory inconsistency between a solicitor’s regulatory obligations under the warning notice on the one hand, and the position under the general law on the other.