Workplace non-disclosure agreements: what they cover, what they cannot, and what is changing

Few employment law topics have evolved as quickly in recent years as the non-disclosure agreement, or NDA. Once a quietly drafted provision in a settlement document, the NDA has become a focal point of public debate, parliamentary reform and regulatory scrutiny. Whether you are an employee being asked to sign one, or an employer reviewing your settlement templates, it is worth understanding both what these agreements can legitimately do and the new limits Parliament has placed on them.

This article focuses on the position in England and Wales.

What a workplace NDA is

An NDA, sometimes called a confidentiality clause or "gagging clause", is a legally binding promise to keep specified information confidential. In a workplace context, it usually appears in one of three forms: a standalone confidentiality agreement (often signed at the start of employment); a clause within the employment contract; or a clause within a settlement agreement signed when employment ends or a workplace dispute is resolved.

The scope is generally a mix of:

• defined confidential information such as trade secrets;
• client lists, pricing, intellectual property and business strategies;
• the terms and circumstances of any settlement, including the sum paid;
• non-disparagement of the employer, its staff and customers; and
• a list of "permitted disclosures" identifying the people the worker may still speak to, such as their lawyer, immediate family, doctor, or relevant regulator.

Acas guidance on non-disclosure agreements sets out clear examples for both employers and workers.

The legitimate uses

NDAs are not, in themselves, controversial. Properly drafted, they protect genuine commercial value, privacy and confidentiality, allow workplace disputes to be resolved swiftly and privately, and can also work in the worker's favour by keeping the circumstances of a departure out of the public domain. For both parties, they offer the certainty of a clean break.

What an NDA cannot do, and never could

Long before the recent statutory reforms, the courts and regulators had drawn clear lines on what an NDA could not achieve. Under the common law, no NDA can prevent someone from reporting a crime to the police. Under section 43J of the Employment Rights Act 1996, any clause purporting to stop a worker making a "protected disclosure" (whistleblowing in the public interest) is void. The Government also publishes guidance on whistleblowing for employees, explaining how those protections operate.

The Solicitors Regulation Authority has issued a warning notice stating that solicitors must not use NDAs to prevent disclosures to regulators, professional advisers or law enforcement, and that doing so may constitute professional misconduct.

Recent changes already in force

Three significant statutory reforms now sit alongside these established limits.

First, section 17 of the Victims and Prisoners Act 2024 took effect on 1 October 2025. It renders void any provision in an agreement (including a workplace NDA or settlement clause) that would prevent a victim of crime, or someone who reasonably believes they are a victim, from disclosing information about the offence to specified recipients. Permitted recipients include the police, qualified lawyers, victim support services, regulators, and close family members for emotional support. The protection applies only to NDAs signed on or after 1 October 2025; agreements signed before that date remain governed by the previous law. Detailed Government guidance on these changes is available on GOV.UK. Workplace misconduct can sometimes overlap with breaches of the criminal law, meaning that this provision has to be considered in drafting an NDA.

Second, the Higher Education (Freedom of Speech) Act 2023 commenced on 1 August 2025. It prohibits registered higher education providers in England from using NDAs with staff, students, or visiting speakers in relation to complaints of sexual abuse, sexual harassment, sexual misconduct, or other bullying or harassment. Unlike the workplace reforms discussed below, this ban is absolute, with no equivalent to an "excepted agreement" mechanism.

Third, since 6 April 2026, sexual harassment has been expressly added to the list of "qualifying disclosures" that attract whistleblowing protection. This change was introduced by the Employment Rights Act 2025, which amended section 43B of the Employment Rights Act 1996. In practice, a worker who reports sexual harassment (whether past, present or anticipated) is now doubly protected, as a whistleblower from detriment and unfair dismissal, provided the usual public interest test is met, and as someone who has done a 'protected act' for discrimination law purposes. An NDA cannot be used to override that protection.

Changes still to come

The most far-reaching workplace reform is yet to take effect. The Employment Rights Act 2025 will, when commenced, void any agreement that prevents a worker from making allegations or disclosures about harassment (including sexual harassment), and most types of workplace discrimination, including a failure to make reasonable adjustments. The provisions will apply to how the employer responds to such conduct, e.g. the investigation and steps taken in consequence, as well as to the conduct itself. This will be far-reaching as the changes making employers liable for 'third-party' harassment (e.g. of staff by customers) will also be covered.

Commencement is currently expected in early-to-mid 2027, following a government consultation on the supporting regulations which closes on 8 July 2026. The reforms will not apply retrospectively to existing agreements.

A narrow carve-out for "excepted agreements" is under consideration. Current proposals suggest that these will need to be initiated by the worker, supported by independent legal advice, and subject to a cooling-off period (the Government has cited Ireland's recent reforms, which include a 14-day window, as a reference point). Even where an excepted agreement is in place, the worker will retain the right to make disclosures to specified people and bodies.

These changes sit alongside the existing duty introduced by the Worker Protection (Amendment of Equality Act 2010) Act 2023, which has been in force since 26 October 2024 and requires employers to take reasonable steps to prevent sexual harassment in the workplace. From October 2026, the Employment Rights Act 2025 will raise this duty to "all reasonable steps" and reintroduce employer liability for third-party harassment of workers.

What this means in practice

For employees, the practical message is that more recent NDAs offer less scope to silence concerns about misconduct than older ones did. If you are being asked to sign an NDA today, particularly as part of a settlement, you should expect to see clearly drafted carve-outs covering legal advice, regulators, the police, family support and protected disclosures. Settlement agreements already require independent legal advice before they can take effect.

For employers, this is a sensible moment to review template employment contracts and settlement agreements. Clauses drafted from older precedents may not reflect the section 17 carve-outs already in force and will certainly need updating before the Employment Rights Act NDA provisions commence. Settlement strategy may also need a rethink: the certainty an NDA once provided is narrower in scope, and the recent expansion of whistleblowing protection means harassment-related concerns are increasingly difficult to keep contractually private.

Pulling the threads together

The legal landscape around workplace NDAs is shifting, and a one-size-fits-all approach to drafting or signing is no longer safe. Whether you are entering into an NDA, reviewing a precedent, or seeking to understand the implications of one already signed, the detail matters. If you have any questions about a workplace NDA, get in touch with your solicitor for advice tailored to your circumstances.

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