Background
The Government’s April 2026 consultation forms part of the wider “Make Work Pay” reforms under the Employment Rights Act 2025 (ERA 2025). It provides the first detailed indication of how the forthcoming restrictions on non-disclosure agreements (NDAs) will operate in practice.
Under the new section 202A of the Employment Rights Act 1996, any provision in an agreement between an employer and a worker which prevents the worker from making allegations about, or disclosures relating to, relevant harassment or discrimination (or the employer’s response to it) will be void.
Relevant harassment or discrimination is widely defined and will include:
- conduct carried out (or alleged to have been carried out) by the employer or another worker; or
- situations where the worker or a colleague is the victim, regardless of who carried out the discriminatory/harassing behaviour. For example, this would capture a scenario where a worker is sexually harassed by the employer’s client.
The restriction will apply to all types of agreement, including settlement agreements, employment contracts and COT3 agreements.
NDAs will remain enforceable where they meet conditions set out in regulations known as “excepted agreements” (outlined below).
The consultation seeks views on how this framework should operate before the reforms are implemented. The consultation closes on 8 July 2026. The reforms are expected to come into force in 2027.
Excepted agreements: what conditions are proposed?
Key proposed conditions include:
- Independent written advice - workers must receive advice from a relevant independent adviser (for example, a solicitor or trade union official) on the terms, effect and limitations of the NDA. The adviser must be named and appropriately insured
- Express written preference – having received written advice, the worker must confirm in writing that they wish to enter into the agreement. This is designed to ensure genuine, informed consent and reduce the risk of coercion.
- Cooling off period - A mandatory 14-day cooling-off period is proposed, during which the worker can withdraw without penalty.
- Written and accessible agreement – the agreement must be provided in writing and in an accessible format so the worker can understand and refer back to it.
- Past incidents only – NDAs will only be permitted in relation to conduct that has already taken place or is alleged to have taken place, preventing the use of “pre-dispute” NDAs.
- Additional safeguards – the Government is also considering requirements such as plain English drafting and time limited confidentiality obligations.
Permitted disclosures: who can workers still speak to?
Even where an NDA qualifies as an excepted agreement, workers will retain the right to make certain disclosures.
This builds on existing protections (such as whistleblowing and reporting crime), and the Government is proposing a formal list of “permitted disclosures”, including:
- law enforcement and regulators (e.g. police, HSE, ICO)
- qualified lawyers and professional advisers
- healthcare professionals and victim support services
- Acas and employment advisers
- trade union representatives
- close family members
The consultation also considers whether workers should be allowed to disclose to prospective employers or recruiters, although there are concerns that this could reduce employers’ willingness to enter into NDAs at all.
To whom may the restrictions apply in the future?
The ERA 2025 provisions restricting the use of NDAs currently apply to employees and workers who work under a contract personally to perform services for another party to the contract who is not their client or customer. However, the Government is consulting on whether to extend the restriction to a wider group of individuals, such as agency workers, workers on secondment, individuals on work experience, certain NHS workers and self employed individuals, who may also be vulnerable to the misuse of NDAs.
What this means for public sector employers
Unlike many private sector organisations, settlement agreements tend to be used more selectively in the public sector. They often require significant approvals, supported by a clear business case.
The Government’s proposals represent a clear shift away from NDAs as a routine tool for managing harassment and discrimination issues. Whilst this may have a less immediate operational impact in the public sector, where settlement agreements are already subject to rigorous controls, the reforms will nevertheless add to the procedural and governance hurdles that organisations must satisfy before entering into them.
In practice, this may in some cases reduce the attractiveness of settlement agreements as a means of resolving disputes, particularly given the additional uncertainty introduced by requirements such as the 'cooling-off' period. At the same time, a reduced reliance on NDAs may expose public sector employers to greater reputational risk, as complaints and outcomes are more likely to become visible in an environment already subject to scrutiny.
The practical response is likely to be a continued shift away from settlement-driven resolution and towards early, effective dispute management. Public sector employers should therefore focus on strengthening early intervention and resolution processes, ensuring investigations are robust, timely and well-documented and reviewing grievance procedures to ensure they provide a clear and defensible framework for managing complaints.
In short, these reforms reinforce the need for public sector employers to rely less on confidentiality as a control mechanism, and more on transparent, well-governed processes that can withstand scrutiny.
Authored by Emily Crees.
If you need any assistance with regard to the issues raised in this update please do not hesitate to get in touch.
