The UK Government’s latest move to outlaw the use of non-disclosure agreements (NDAs) in cases involving workplace harassment and discrimination has sparked widespread debate among legal experts, HR professionals, and employers. While the amendment to the Employment Rights Bill aims to bolster transparency and prevent the silencing of victims, concerns remain over unintended consequences that could impact both employees and employers.

The Government’s proposed change, Clause 22A of the Employment Rights Bill, would render void any agreement that prohibits the disclosure of harassment or discrimination in the workplace, including sexual misconduct. The legislation covers all protected characteristics under the Equality Act 2010 and applies whether the individual is the complainant or a witness.

Joanna Lewis, Managing Director at Safecall, welcomed the move, stating, “Banning firms from using NDAs to cover up harassment and discrimination marks a significant and positive step forward. Now there is little room for businesses to hide.”

The CIPD also supports the reform. Ben Willmott, head of public policy, notes,“For too long, a minority of companies have used NDAs to silence employees who’ve experienced harassment. While NDAs can have a place, this amendment is an important step toward accountability.”

Not All NDAs Are Equal

Despite widespread support for greater transparency, employment law experts caution against a blanket ban. Christine Braamskamp, Managing Partner at Jenner & Block, reminds us that NDAs are not inherently nefarious, “NDAs can be a pragmatic tool for employers to manage the privacy and rights of everyone involved in workplace misconduct—from whistleblowers to the accused. Without them, it may be harder to protect identities and ensure procedural fairness in ongoing investigations.”

Julie Morris, employment partner at Keystone Law, echoes this concern, “At their worst, NDAs silence victims. But in many cases, confidentiality clauses are justified—such as when the validity of a complaint is disputed or when victims themselves wish for privacy.”

Indeed, critics argue that eliminating NDAs could reduce the likelihood of early, amicable settlements. Stephen Simpson of Brightmine warns, “Employers may become reluctant to offer settlements if they can’t secure confidentiality. That could force more cases into already overburdened employment tribunals.”

David Greenhalgh, employment partner at Excello Law, highlights the broader impact on the legal system, “Without reforming the tribunal process—where cases already take a year or more—this ban may unintentionally harm victims. Many employers won’t settle without NDAs, so employees could be left facing long delays or no remedy at all.”

Bethan Jones, a partner at Spencer West LLP, adds that the proposed changes could strip employees of choice, “Many victims prefer anonymity and a quick resolution. The current system at least allows for that choice. This amendment may take it away.”

If enacted, the Bill will require employers to review and revise their existing contracts, HR policies, and settlement agreement templates to ensure compliance. The ban would not apply to allegations involving failure to make reasonable adjustments for disabilities, which can still be subject to confidentiality clauses.

CIPD research from Spring 2024 underscores the lack of clarity within organisations:

·       22% of employers report using NDAs in sexual harassment cases.

·       Over a third are unsure whether NDAs are used at all.

·       Private sector firms are far more likely to use them compared to public and voluntary organisations.

·       The findings suggest a pressing need for clearer internal policies and greater leadership oversight in how NDAs are deployed.

The Road Ahead

While the amendment is designed to protect workers and foster open workplace cultures, experts agree that legislation alone won’t fix toxic work environments. As Willmott of CIPD puts it, “Law is just one part of the solution. Organisations must also tackle root causes—like poor management practices—and ensure employees feel safe reporting misconduct.”

Employers, legal practitioners, and policymakers now face the challenge of finding a balance between transparency and protection, ensuring NDAs are not misused while retaining their value in certain contexts. As this landmark amendment moves forward, ongoing consultation will be crucial to achieving that equilibrium.