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From 1 August 2025, English higher education providers are prohibited from entering into non-disclosure agreements (NDAs) in relation to complaints of sexual abuse, sexual harassment, sexual misconduct or any other bullying or harassment. This covers NDAs with their staff, students, visiting speakers and members. This also includes confidentiality clauses in settlement agreements.
This legislation has been in the pipeline for some time. It marks a continued commitment to tackling the inappropriate use of NDAs in cases such as harassment, discrimination and bullying.
Additionally, in recent amendments to the Employment Rights Bill (ERB) a new clause has been proposed which will void any NDA that attempts to prevent disclosure or allegations of work-related discrimination and harassment, or indeed how an employer responded to such allegations. “Excepted agreements” will be outside the scope of the new provisions, provided that they satisfy any condition specified in regulations. Of course, we don’t yet know what these conditions will be. The government’s impact assessment confirms that an agreement requested by a worker may be outside the scope of the new provisions, but we await further information on what else might be “excepted”. It is not clear when the ban will come into effect as it wasn’t included in the ERB roadmap.
While these changes will be welcomed by many as a way to prevent cover-ups and allow victims to speak out about their experiences, in practice it may mean that employers are less willing to settle discrimination and harassment claims, given confidentiality is often a key consideration when deciding whether to settle a dispute.
Therefore, it would certainly be advisable for employers to audit settlement agreements and NDAs to ensure compliance with this change. Developing alternative dispute resolution mechanisms for handing these types of complaints is also something that should be at the top of every HR Directors’ to-do-list.
To discuss any of the issues raised in this article or to seek assistance with an audit, please contact Lynsey Blyth.