New Restrictions on Non-Disclosure Agreements for Discrimination, and Harassment under the Employment Rights Bill

This new clause renders void any provision in a contract between an employer and a worker that attempts to prevent the worker from making allegations or disclosures about harassment or discrimination.

Harassment is defined under the Equality Act 2010 as unwanted conduct related to a protected characteristic that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. Discrimination occurs when someone is treated less favourably because of a protected characteristic such as age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief, sex, or sexual orientation.

The scope of the new proposed provision is broad. It applies not only to employment contracts but to any agreement between a worker and employer, including settlement agreements. It also extends protections to former workers, and the government may further extend it to include contractors, trainees, and those on work experience. The protection applies regardless of whether the alleged harassment or discrimination was committed by the employer or another employee, and whether the complainant is the direct victim or a witness.

The aim of the amendment is to address the misuse of NDAs and to promote greater transparency and accountability in workplaces. However, there is one curious limitation to the otherwise broad provision: the clause does not cover allegations relating to failure to make reasonable adjustments (where someone has a disability under the Equality Act). This means confidentiality clauses may still be used in those specific claims if an employer so chooses. However, it may have limited value given the exception is relatively narrow.

It is already clear that NDAs cannot be used to prevent individuals from reporting criminal offences to the police. This principle has now been formally set out in legislation under the Victims and Prisoners Act 2024, which takes effect from 1 October 2025. From that date, employers must ensure that any NDA entered does not seek to restrict disclosures relating to criminal conduct and should review their standard agreements accordingly.

One potential consequence of the new Clause 22A is that employers may be less willing to settle discrimination or harassment claims, since they can no longer rely on confidentiality as part of the resolution. Reputation is an important consideration. More disputes may move to a Tribunal as employers may be keen to defend their position. Certainly, whatever impact this may have on litigation, the focus is now shifting towards fostering transparency in workplaces.
 

Next steps for employers

1. Employers should review and revise confidentiality clauses in all employment contracts, settlement agreements, and internal policies in readiness to ensure compliance with this new Clause 22A when it is introduced.
2. Employers must not threaten staff with breach of contract for speaking to regulators, police, media, or colleagues in relation to discrimination or harassment. Many settlement agreements already include exclusions to confidentiality provisions to permit reporting offences to the police and other organisations, but this is broader.
3. Train staff that deal with these issues regarding the change.
4. With NDAs losing their enforceability in many cases, employers may need to reconsider settlement strategies, placing greater emphasis on resolving issues before they escalate further. This would help to foster a safer working environment.

It is already clear that NDAs cannot be used to prevent individuals from reporting criminal offences to the police. This principle has now been formally set out in legislation under the Victims and Prisoners Act 2024, which takes effect from 1 October 2025. From that date, employers must ensure that any NDA entered does not seek to restrict disclosures relating to criminal conduct and should review their standard agreements accordingly.

If you would like us to review your settlement agreements and contracts, or need assistance with any other employment related matters, please do get in touch with our Employment Team on 020 8290 0440 (Bromley) or 01732 496 496 (Sevenoaks) or employment@thackraywilliams.com.