There has been increased pressure to ban such agreements following the #MeToo movement. This Inbrief explains the current legal restrictions, guidance, and best practice in relation to NDAs covering harassment or discrimination.

Current Legal Restrictions on NDAs

There are a number of current legal requirements for NDAs, and restraints on their use.

Prevention of Whistleblowing

All NDAs which try to prevent a protected disclosure are void and unenforceable. This applies in England, Wales, and Scotland.

The test for whether someone has made a protected disclosure has several steps. To qualify for protection, the disclosure must be about one of a list of topics, including breach of a legal obligation, which is likely to cover unlawful harassment and discrimination. The worker making the disclosure must have a reasonable belief that it is in the public interest. There are also requirements about who the disclosure must be made to in order to be protected, which in most cases is the employer rather than external third parties. For more detailed information on all applicable tests, see our Inbrief on whistleblowing.

In practice, many whistleblowing disclosures about harassment or discrimination are likely to meet the test, especially if they are made to the employer or a regulatory body. The Employment Rights Bill will also add disclosures about sexual harassment to the list of topics that qualify for protection from April 2026.

Victims of Criminal Conduct

From 1 October 2025, in England and Wales it is not possible for NDAs to prevent certain disclosures by victims of criminal conduct. A victim is someone who has suffered harm by being subjected to criminal conduct, or certain other circumstances including experiencing the effects of the conduct or the death of a close family member directly caused by the conduct. There is no need for the victim to have reported a criminal offence, and it is enough to reasonably believe you are a victim.

In the context of workplace discrimination and harassment, some more serious types of conduct may amount to criminal conduct and so be covered by these provisions.

Disclosures to the following groups for certain purposes are covered:

• The police, and others with relevant law enforcement functions, for them to act in relation to the conduct.
• A qualified lawyer, in order to seek advice about the conduct.
• A regulated professional, in order to obtain professional support.
• The regulator of a regulated profession (e.g., the GMC or SRA) in order to cooperate with an investigation into the conduct.
• Any individual who provides a service to support victims, in order to obtain support.
• The Criminal Injuries Compensation Authority (CICB) for the purpose of a claim, and a court or tribunal in relation to decisions of the CICB.
• Anyone authorised to receive information on behalf of the above groups (e.g., a receptionist or interpreter).
• A child, parent, or partner of the person making the disclosure, for the purposes of obtaining support.

However, an NDA which prevents a disclosure made for the primary purpose of releasing information to the public domain will still be enforceable.

For example, a victim talking to a qualified lawyer with the intention of the lawyer acting as their spokesperson to publicise the information.

The Ministry of Justice has published detailed guidance on what this new law means in practice.

NDAs in Higher Education

Registered higher education providers in England are prevented from entering into NDAs with staff, members, students, or visiting speakers in relation to complaints of misconduct or alleged misconduct. “Misconduct” is defined as sexual abuse, sexual harassment or sexual misconduct, and other types of bullying or harassment. Any NDA which falls within this definition will be void.

Guidance and Current Best Practice

In addition to the current legal requirements, a number of organisations have published guidance and warnings about the use of NDAs.

• The Equality and Human Rights Commission has published best practice guidance on the use of confidentiality agreements in discrimination cases.
• Acas has published general guidance on using non-disclosure agreements. This includes a statement that an NDA should not be used to stop a worker from reporting discrimination, which includes harassment and sexual harassment.
• Solicitors have additional regulatory requirements to consider. The Solicitors Regulatory Authority (SRA) has published and updated a Warning Notice to solicitors on the use of NDAs. This applies to all practitioners, including in-house counsel. The latest version adds a new section on improving how you deal with NDAs. The warning notice includes guidance on what the SRA considers would constitute inappropriate or improper use of NDAs. The SRA has also published guidance for in-house solicitors, and the section on reporting wrongdoing gives guidance about being asked to use NDAs to suppress repeated wrongdoing.
• The Law Society has published a practice note on non-disclosure agreements and confidentiality clauses in an employment law context (accessible to members), which emphasises the relevant regulatory obligations on solicitors and sets out their view of good practice.

Proposals for Reform

The Employment Rights Bill contains a major reform which makes NDAs with a worker void if they prevent allegations or disclosures about harassment or discrimination. The ban also covers NDAs about the employer's response to the harassment/discrimination or the allegation/disclosure. The drafting is wide enough to cover disclosures about conduct by third parties, as well as by the employer and fellow workers.

There is power to make regulations on “excepted agreements” where the ban does not apply, which is likely to include where the NDA was requested by the employee and may also include “cooling off” and other provisions. There will be consultation about the reforms and there is no implementation date as yet.

The Victims and Courts Bill contains plans to extend the ban on NDAs for victims of criminal conduct, by removing the requirements for the disclosure to be made to certain people for specified purposes. As with the Employment Rights Bill, the ban will not apply to an excepted agreement (to be defined in regulations).

NDA Tables

Our tables bring together the various sources of law and guidance to identify the current legal and regulatory requirements (highlighted in red) and distinguish them from best practice and future proposals. We start by looking at the position for settlement agreements, and then consider the position for employment contracts. You can view these tables by downloading this inbrief below.