Rena Magdani examines the implications for employers of proposed changes to the NDA regime

The government has launched its consultation on proposals in the Employment Rights Act 2025 aimed at preventing non-disclosure agreements (NDAs) being used to pressure workers or silence victims of harassment and discrimination at work. The starting point under the Act is that any NDA (or similar clause) that restricts the disclosure of harassment or discrimination would be unenforceable.

However, the Employment Rights Act referred to an exception for provisions contained within an ‘excepted agreement’. When the restriction was announced, some commentators argued that the change could make settlement harder, particularly where both parties want confidentiality as part of resolving a complaint.

Others said that the impact on NDAs would largely depend on how widely (or narrowly) ‘expected agreement’ is defined. The consultation document reveals the government’s proposals of what should qualify as an expected agreement:

• The worker receives independent legal advice (similar to the current settlement agreement requirements) or advice via Acas (similar to current COT3 requirements).
• The worker confirms in writing that entering into the NDA is their preference.
• There is a 14-day cooling-off period, during which a worker can withdraw their agreement to an NDA without penalty.

The consultation also asks whether:

• an employer should be able to be the one to suggest a confidentiality...

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