NDAs Under Scrutiny
What the Government's Consultation Could Mean for Employers
Non-disclosure agreements have long been a routine feature of settling workplace disputes, including harassment and discrimination claims. A government consultation, open until 8 July 2026, is looking closely at whether — and how — that practice should change.
What's being proposed
The consultation considers new limits on how NDAs can be used in harassment and discrimination cases. One of the more significant proposals is that, even where an NDA is otherwise valid, individuals would always retain the right to disclose harassment to certain people and bodies — including regulators, medical professionals, and close family members — regardless of what the agreement says. In other words, an NDA could no longer be drafted to silence someone completely, even in areas where confidentiality is agreed.
This follows growing public and political concern that NDAs have, in some cases, been used less to protect commercially sensitive settlement terms and more to prevent repeat harassers from being identified, or to discourage individuals from seeking support.
Why employers should be watching this now, not waiting for the outcome
Consultations don't create legal obligations on their own, and the changes here aren't expected to take effect until sometime in 2027. But the direction is clear enough that it's worth reviewing your organisation's approach to settlement agreements well before any new rules land — for two reasons.
First, standard NDA wording used in many settlement agreements will likely need updating once the rules change, and template documents rarely get revisited until something forces the issue. Second, and more importantly, this consultation is a signal about how the government — and by extension, tribunals and public opinion — are thinking about the purpose of confidentiality in harassment cases. Employers who treat NDAs as a way to make a problem quietly disappear, rather than as one part of a genuinely resolved situation, are increasingly out of step with where the law is heading.
What good practice looks like regardless of the outcome
Whatever the final regulations say, a few principles are likely to serve employers well:
Don't rely on an NDA in place of a proper investigation. A settlement agreement that closes down an allegation without it ever being properly looked into leaves the underlying issue — and the person who raised it — unresolved, and potentially exposes the organisation if a pattern later emerges.
Be precise about what confidentiality is actually protecting. Settlement terms and financial details are reasonably confidential; the fact that a complaint was made and how it was resolved is a different matter, and blanket silence clauses covering both is exactly the practice under scrutiny.
Keep records of how harassment allegations were investigated, independently of whatever confidentiality terms are eventually agreed. If your investigation was thorough and fair, that stands on its own merits — it doesn't need an NDA to look defensible.
The bigger picture
This consultation sits alongside a broader tightening of harassment-related obligations across UK employment law this year — the strengthened prevention duty landing in October 2026 being the most prominent example. Together, they point toward a workplace culture where harassment concerns are expected to be properly investigated and genuinely addressed, not quietly settled and buried.
Blue Rock Investigations conducts independent harassment investigations that stand on their own merits — giving employers a properly evidenced outcome, whatever the resolution that follows.
