NDA Restrictions on Discrimination and Harassment Claims: What's Changing for Settlement Agreements

Non-disclosure agreements have long been a standard feature of workplace settlement agreements, and for legitimate reasons in many cases — protecting commercially sensitive information, or giving both parties closure on a dispute without airing it publicly. But NDAs have also been used, and widely criticised, for silencing victims of discrimination and harassment in ways that let problematic conduct continue unchecked. The Employment Rights Act 2025 addresses this directly: confidentiality clauses that prevent a worker from discussing relevant discrimination or harassment will become void, subject to a limited and tightly controlled exception framework the government is still consulting on.

This is a genuine change to how settlement agreements in discrimination and harassment cases will need to be drafted, not a minor tweak to standard boilerplate. This guide sets out what becomes void, what disclosures remain protected regardless of any NDA, and the narrow exception route that may still be available.

What becomes void

Under the Act, any NDA term that prevents a worker from discussing allegations of harassment or discrimination covered by the Equality Act 2010 — or the employer's response to such allegations — will be void. This applies whether the worker is the direct victim or simply a witness to the conduct in question, and regardless of who the alleged perpetrator is. In practice, a settlement agreement's confidentiality clause cannot be drafted to prevent a worker from ever raising or discussing what happened, even where the parties have agreed a financial settlement and both would prefer the matter to stay private.

Disclosures that remain protected regardless

Separately from the general voiding of silencing clauses, certain categories of disclosure are protected outright and cannot be restricted by any NDA, limited exception or otherwise. Workers retain the right to disclose relevant discrimination or harassment to law enforcement and others with law enforcement functions; to qualified lawyers, healthcare professionals, and tax advisers in a professional advisory capacity; to victim support services and bodies such as Acas; to trade union representatives; and to close family members. Disclosures already protected under existing whistleblowing law or crime-reporting provisions remain protected as well. The government is separately consulting on whether prospective employers should be added to this protected list, but that extension is not yet confirmed.

The limited exception framework

The reform does not eliminate confidentiality provisions in this area altogether — it replaces a broad, employer-favourable default with a narrow, worker-protective one. A limited NDA covering discrimination or harassment allegations may still be permitted, but only where a specific set of safeguards is met:

• The worker has received written independent legal advice from a qualified lawyer or trade union official before agreeing to the clause.
• The worker has expressed a written preference to enter into the confidentiality arrangement — it cannot simply be a standard clause the employer inserts as a matter of course.
• A 14-day cooling-off period allows the worker to withdraw from the agreement without penalty after signing.
• The agreement can only cover past incidents, not an undertaking of confidentiality over future conduct.
• The agreement may be subject to a time limit on how long the confidentiality obligation lasts.

The government has also indicated it expects employers to contribute to the cost of the worker's independent legal advice under this framework, mirroring the existing convention in standard settlement agreement practice where the employer typically pays a contribution toward the employee's legal advice on the settlement terms.

Timeline

The underlying provision voiding silencing NDAs is contained in the Employment Rights Act 2025 itself, but the detailed exception framework described above was put out for consultation on 15 April 2026, and the reforms as a whole are expected to come into force in 2027. Employers should treat the general direction — an end to broad, catch-all confidentiality over discrimination and harassment allegations — as settled, while recognising that the precise mechanics of the limited exception route may still shift before the regulations are finalised.

What employers should do now

HR and legal teams responsible for drafting settlement agreements should review current template confidentiality clauses used in discrimination and harassment settlements, since standard boilerplate that broadly silences a worker on the substance of a complaint is precisely what this reform is designed to eliminate. This connects directly to two other 2026 developments already reshaping how employers handle harassment: the stronger third-party harassment duty arriving in October 2026, and the existing preventative duty on sexual harassment already in force since October 2024. Employers who are already taking harassment prevention seriously under those duties are likely to find the NDA reform a natural extension of practice they are already moving toward, rather than a wholly new compliance burden.

Frequently asked questions

Does this ban all confidentiality clauses in settlement agreements?

No — it specifically targets clauses that would prevent a worker from discussing discrimination or harassment allegations covered by the Equality Act 2010, or the employer's response to them. A limited exception route remains available subject to strict safeguards including independent legal advice and a cooling-off period.

Can an NDA still stop a worker from talking to a lawyer or the police about what happened?

No — disclosures to law enforcement, qualified professional advisers, victim support services, trade union representatives, and close family members are protected outright and cannot be restricted by any NDA.

When do these changes take effect?

The government's consultation on the detailed exception framework was published on 15 April 2026, with the reforms expected to come into force in 2027.

The direction of this reform is unambiguous even while some mechanics remain subject to consultation: broad, catch-all NDAs silencing discrimination and harassment allegations are being phased out in favour of a narrow, safeguarded exception. Employers should start reviewing settlement agreement templates now rather than waiting for the 2027 implementation date. Learnsignal's CPD courses cover the Employment Rights Act 2025 reforms as they are confirmed through 2026 and 2027.