Employment Law Guide 2026: Non-disclosure agreements

Under the ERA 2025, provisions in an agreement, such as a non-disclosure agreement (or NDA), which purport to prevent a worker from discussing or raising allegations of workplace discrimination, harassment or sexual harassment, or the employer’s response to such allegations, will be void. Certain “excepted agreements” may be excluded (so that a prohibition on disclosures would be enforceable) but the scope of any exclusion remains unclear and is likely to be the subject of further consultation. Settlement agreements are unlikely to be “excepted agreements”, although it is possible that an NDA requested by an employee might fall within the definition of “excepted agreements” and could therefore, be enforceable. It is not yet clear when these provisions will come into force.

From 1 October 2025, the Victims and Prisoners Act 2025 introduced new restrictions on non-disclosure agreements. Any provision in an agreement is void in so far as it seeks to prevent a victim of crime from disclosing information about criminal conduct of which they are a victim to certain people for certain purposes (for example to the police so they can investigate/prosecute, lawyers so they can seek legal advice and victim support services and close family so they can obtain support). The Government plans to extend this through the Victims and Courts Bill 2025 so that the purpose of the disclosure, and the person to whom it is made, will no longer be relevant, although it plans to allow NDAs to be enforceable if contained in an “excepted agreement” (to be specified in regulations). The Bill is currently progressing through Parliament but it is not clear when these provisions will come into force.

Implications/Action points

• Employers may prefer to defend rather than settle discrimination and harassment claims where there is a high risk of the employee going public even where a settlement is agreed
• Confidentiality provisions in template settlement and other agreements need to be reviewed to ensure appropriate carve outs for disclosures permitted by the Victims and Prisoners Act (and the Victims and Courts Bill when in force). There will also need to be carve outs for discrimination, harassment and sexual harassment when those provisions of the ERA 2025 come into in force.