The UK government has said it will legislate to stop employers from using non-disclosure agreements (NDAs) to cover up harassment and discrimination in what campaigners hope will lead to a sea change in workplace culture. 

Perkins is particularly delighted that all workers, regardless of their contractual status, will be protected by the amendment. ‘Essentially they have broadened the definition of a worker to someone who provides a service to anybody else – there doesn’t even have to be a written contract,’ she says. ‘It means that a waitress in a restaurant who gets harassed or discriminated against by a customer is protected. That is extraordinary.’ 

If passed, the proposals will ensure that low-income and freelance workers, interns and those on work experience – often the most vulnerable to NDAs – will receive the same protections. The amendment will apply to all sectors, although low-paid workers in the creative industries, retail and hospitality are expected to particularly benefit from the change. ‘They get paid barely anything and yet the same catastrophic effect of having their voice removed is there,’ says Perkins. 

Mark Stephens CBE, Co-Chair of the IBA’s Human Rights Institute, has represented Perkins and many other victims of NDAs. He says this legislation is long overdue in the UK. ‘It shows that when lawyers adapt a perfectly legitimate tool of business to an abusive purpose that the law will react against that,’ he says.

Following the government’s proposals to ban NDAs that silence workplace harassment, a spokesperson for the Solicitors Regulation Authority (SRA), the regulator in England and Wales, said the organisation has been ‘clear with the profession that NDAs should not be used to cover up serious misconduct or potential crimes, including preventing reporting to regulators or law enforcement agencies.’ 

In August 2024 the SRA issued a second warning notice reminding solicitors about the risks associated with NDAs. The SRA says it’s in the process of ‘reviewing the impacts’ of the government’s amendment on its current approach and will continue to investigate ‘cases where there is a suggestion [that] NDAs are being used inappropriately’.

There were some initial concerns that the government’s proposed ban would prevent workers from voluntarily seeking confidentiality. However, on 17 July, the Department for Business and Trade published an impact assessment which suggested that it will remain lawful for workers to request confidential settlements.

Ed Mills, an officer on the IBA Employment and Industrial Relations Law Committee, strongly welcomes this exception, but says employers need greater clarity on how this will work in practice. The government is planning a consultation on these issues and says the exact conditions for excepted NDAs will be outlined in the regulations.  

If it becomes law, this change would bring the UK in line with countries such as Ireland, which in 2024 introduced legislation that severely restricted the use of NDAs in employment contexts save for certain ‘excepted NDAs’ made at the employee’s request upon receiving independent legal advice.

Mills, who’s an employment partner at Travers Smith in London, says that employers are concerned about some of the proposals, including whether the ban will ‘protect any allegations of discrimination or harassment, regardless of whether they are true or whether the worker has a reasonable belief in their truth.’ He says employers will be looking for the government to set clear ‘parameters […] to prevent allegations being raised in bad faith.’

There has also been speculation that the amendment will make it more difficult for victims in discrimination and harassment cases to reach settlement agreements if the employer no longer has guaranteed confidentiality. Mills says some employers may be ‘more reluctant’ to settle and could, in some cases, force victims into costly litigation. Stephens – who’s also a media law partner at Howard Kennedy in London – remains unconvinced, however. The idea that it will ‘make cases more difficult to settle […] just hasn’t been borne out on the international stage,’ he says. 

Perkins echoes this sentiment, pointing to research carried out by CBMS co-founder Julie Macfarlane, who analysed data from the US Equal Employment Opportunity Commission, demonstrating that settlement rates in sexual misconduct cases in US states that have banned NDAs actually rose by about ten per cent. 

In the US, 27 states have now introduced laws limiting the use of NDAs. Luz Nagle, a former Co-Chair of the IBA Crimes Against Women Subcommittee, hopes the NDA amendment in the UK’s Employment Rights Bill might one day be replicated on a federal level in the US. ‘I really applaud this initiative in the UK,’ says Nagle. ‘It is going to force employers to clean up their act.’

A third reading of the Bill, which proposes a wide range of other reforms including new rules on firing and re-hiring employees, collective redundancy, zero-hour contracts and sick pay, is scheduled to take place in the UK’s House of Lords in early September. Once it passes through the House of Commons, Perkins is confident that the Bill could reach Royal Assent – and become law – by the end of 2025.  

The government has already confirmed there will be a phased approach to the Bill’s implementation, with the majority of reforms taking effect between April 2026 and the end of 2027. 

It’s unclear at this stage where the NDA ban will fall in this timeframe, but Perkins is in no doubt about the impact it’ll have on workplace culture in the UK. ‘Very rapidly the whole workplace environment is going to improve because bad behaviour won’t be able to flourish or be incubated,’ she says. ‘The implementation, the regulations and secondary regulations of this bill are really where the proof in the pudding is going to be.’
 

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