On 15 April 2026, the Government launched a consultation on new regulations aimed at preventing the misuse of non‑disclosure agreements (NDAs) in cases of workplace harassment or discrimination. The consultation relates to new section 202A of the Employment Rights Act 1996, inserted by the Employment Rights Act 2025, which is expected to come into force next year. Responses are invited until 8 July 2026.
What will section 202A do?
Once in force, section 202A will make void any provision in an agreement between an employer and a worker that prevents the worker from making allegations or disclosures about relevant harassment or discrimination, or the employer’s response to it.
However, the legislation allows for NDAs to remain enforceable where they qualify as an ‘excepted agreement’. The purpose of the consultation is to determine what statutory conditions such agreements should meet in order to fall within that exception.
Proposed safeguards for excepted agreements
The consultation proposes a range of safeguards, including:
- Independent written advice: Before entering into an excepted agreement, the worker must receive written advice from a relevant independent adviser explaining the agreement’s terms, effect and legal limits.
- Written consent: After receiving advice, the worker must confirm in writing that they wish to enter into the agreement.
- Cooling‑off period: A mandatory 14‑day cooling‑off period is proposed, during which the worker could withdraw without penalty. The Government is consulting on whether this period should be shorter or capable of being waived.
- Accessible written copy: A signed copy of the NDA must be provided to all parties in an accessible format, with views sought on whether plain‑language drafting should be required.
- Past conduct only: Excepted agreements should cover only harassment or discrimination that has already occurred, preventing the use of pre‑dispute NDAs.
- Time‑limited confidentiality: Confidentiality obligations would need to be time‑limited and subject to a statutory maximum duration.
Permitted disclosures
Even where an NDA qualifies as an excepted agreement, it cannot prevent whistleblowing or reporting a crime. The consultation also proposes an expanded list of people and bodies to whom workers could make disclosures in order to seek advice or support, including lawyers, regulators, law enforcement, Acas, trade union representatives, victim support services and close family members. The Government is also consulting on whether disclosures to prospective employers should be permitted.
Who will be protected?
Initially, section 202A will apply only to individuals who meet the statutory definition of a ‘worker’ under section 230(3) ERA. However, the consultation seeks views on extending protection to a wider group, including agency workers, interns and trainees, certain NHS professionals, student nurses and midwives, and vulnerable categories of self‑employed individuals.
Link to consultation: https://www.gov.uk/government/consultations/make-work-pay-misuse-of-non-disclosure-agreements-ndas
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