A new era for workplace NDAs: Harassment and Discrimination cannot be silenced

Adrian Fryer

A new clause in the Employment Rights Bill has been proposed, which could mark a major shift in how employers manage allegations of harassment and discrimination.

The amendment brings about a ban on non-disclosure agreements (NDAs) that attempt to prevent workers from speaking out about harassment and discrimination at work.

What would change?

Under the proposed Clause 22A of the bill, any agreement that purports to prevent a worker from speaking out about workplace harassment or discrimination will be rendered void. This applies to:

• allegations of harassment or discrimination; and
• disclosure of information regarding harassment or discrimination, including how the employer responds to those allegations.

It doesn’t matter whether the alleged discrimination or harassment is by another worker or the employer themselves, and crucially, this protection applies whether the worker is still employed or not.

The clause also gives the Secretary of State the power to extend these protections to:

• trainees and individuals on work experience; and
• individuals who have entered or worked under a “relevant contract”, meaning any contract by which someone agrees to undertake work or services for another party who is a client or customer of their business or profession. For example, any contractors, freelancers, or agency workers.

Why does this matter?

Confidentiality clauses have long been standard practice in settlement deals—often used to protect the employer’s reputation. But under this amendment, attempting to silence an individual over harassment or discrimination could backfire badly, both financially and legally.

If this clause is accepted, employers will need to urgently review their internal policies, contracts, and settlement agreements, to remove any wording that seeks to restrict the worker from making allegations or disclosures about harassment or discrimination (as defined within the Equality Act 2010). Any provisions that do seek this type of restriction would be rendered void as well as causing damage to an organisation’s reputation and trust.

It also makes clear that employees can’t be threatened with legal action for speaking to the police, regulators, media, or even colleagues.

Any potential pitfalls?

One likely consequence of this proposed clause is that, without the shield of confidentiality, employers may become more reluctant to settle harassment or discrimination claims—knowing they can no longer rely on NDAs to manage any reputational risk. This could result in more cases being pursued publicly at employment tribunals, meaning lengthy litigation for both Claimants and Respondents alike.

Interestingly, the proposed new clause does not apply to disability discrimination cases involving a failure to make reasonable adjustments. Those claims can still legally be wrapped up in NDAs—for now. This seems like a strange omission, given the broader push for transparency.

How Bermans can help

If you need support reviewing your documentation or handling sensitive workplace matters, our Employment Team is here to help.

Contact Bermans Head of Employment, Adrian Fryer.