Axis HR’s article in The HR Director magazine – Government launches consultation on workplace harassment NDAs
The Government has launched a pivotal consultation that could render most Non-Disclosure Agreements (NDAs) in workplace harassment and discrimination cases unenforceable. Open until 8 July 2026, the proposed regulations – expected to take effect in 2027 – aim to ban confidentiality clauses that prevent workers from speaking about past misconduct, with only narrow exceptions.
Under the new framework, any term in an employment agreement that stops a worker from disclosing relevant harassment, discrimination, or the employer’s response to it will be automatically void. This covers direct and indirect discrimination, disability and reasonable adjustments, gender reassignment, pregnancy and maternity discrimination, and harassment (including sexual harassment by third parties like clients).
To remain enforceable, an NDA must qualify as an “excepted agreement” by meeting strict conditions. The consultation focuses on three key safeguards:
- Independent legal advice – workers must receive written advice from a solicitor or recognised professional explaining the NDA’s terms, effects, and legal limits – including what disclosures cannot be restricted.
- Informed written consent – after receiving advice, the worker must confirm in writing that they voluntarily wish to enter the NDA.
- 14-day cooling-off period – workers can withdraw from the NDA without penalty during this period. The Government is consulting on whether this period can be shortened or waived at the worker’s request.
Even valid excepted agreements cannot block certain disclosures. Workers remain free to make whistleblowing reports, speak to lawyers and healthcare professionals, and report crimes to police. Proposed permitted disclosures also include speaking to trade union representatives, authorised intermediaries, and close family members (parents, partners, siblings, children, or grandparents). The Government is also considering allowing disclosures to prospective employers, especially when asked about leaving a previous role.
For organisations, the implications are significant. NDAs will no longer reliably manage reputational risk, and settlement processes will become more formulaic – requiring independent advice, documented consent, and clear, plain-English drafting. HR leaders and in-house counsel should review their NDA templates immediately and shift focus towards preventative strategies: early reporting, robust complaint handling, comprehensive policies, and workforce training.
Larger employers and those in regulated sectors are urged to respond to the consultation before 8 July 2026 to help shape the final regulations.
