The NDA Ban Under the Employment Rights Act: What It Means for HR
%20(1).png)
When you can no longer buy silence, you have to invest in safety. That's the shift HR teams now need to plan for. Some organisations have historically leaned on settlement agreements and non-disclosure agreements to resolve harassment complaints quietly, keeping the details contained and the reputational risk low. The Employment Rights Act 2025 closes that option down. Once the NDA ban comes into force, a culture of silence stops being something the law will let you enforce.
Here's what the NDA ban actually covers, what it doesn't, and what it means for how HR teams need to operate from here.
What the NDA ban under the Employment Rights Act actually says
The Act inserts a new Section 202A into the Employment Rights Act 1996. Under this section, any provision in an agreement between an employer and a worker is void if it tries to stop that worker from disclosing or alleging the details of harassment or discrimination they experienced, background information relating to those allegations, or information about how the employer responded, including if the employer failed to investigate properly, treated the complainant poorly, or retaliated.
This applies to sexual harassment, bullying that amounts to harassment, and any form of discrimination protected under the Equality Act 2010, covering characteristics such as race, age, disability, and sexual orientation. It doesn't matter whether the gagging clause sits in an employment contract, a settlement agreement, or a standalone confidentiality agreement. If it tries to silence someone about harassment or discrimination, it's void.
The NDA ban protects witnesses, not just the person harassed
This is a detail worth flagging to anyone in the business who thinks the NDA ban only affects the person directly involved. It doesn't. The ban is also designed to protect witnesses and colleagues who have knowledge of the misconduct. If one colleague tells another about being harassed, the person they told can't be legally silenced by an NDA from speaking up about what they heard.
For HR, this closes a route that used to feel like a safety net. You can no longer rely on a settlement covering the complainant while assuming their colleagues will stay quiet too.
What the NDA ban doesn't cover
The Act is targeted, not a blanket ban on confidentiality. Employers can still lawfully use NDAs to protect genuinely commercial information, such as intellectual property, business transactions, or trade secrets. That side of confidentiality is untouched.
There's also a category of "excepted agreements" the government is expected to set out through further consultation, where confidentiality may still be valid under strict conditions. The direction of travel is clear: confidentiality becomes something the worker can request as a benefit, rather than something forced on them as a condition of settlement.
Scope, and who the NDA ban currently covers
As it stands, the protection applies to "workers" under the existing statutory definition. That means it doesn't automatically extend to job applicants, company directors, or certain self-employed contractors. The Act does give the Secretary of State power to extend the ban to these groups later, following consultation, so this is a boundary worth watching rather than treating as fixed.
Timelines for the NDA ban under the Employment Rights Act
Two things matter here for planning purposes. First, the ban is not retrospective. Historic settlement agreements stay as they are; the new rules will only apply to agreements entered into after the legislation comes into force. Second, there's no confirmed commencement date yet. The NDA provisions were added as a late-stage amendment, so they weren't part of the government's original implementation roadmap. The government has called this a priority and is working through consultation on the secondary regulations, but HR teams shouldn't wait for a firm date before reviewing their templates.
How the NDA ban connects to whistleblowing protection
From 6 April 2026, raising a concern that sexual harassment has occurred, is occurring, or is likely to occur will count as a protected disclosure for whistleblowing purposes. That gives individuals automatic protection from detriment or dismissal, and the ability to seek interim relief at a tribunal. Combined with the NDA ban, the message to employers is consistent: reporting harassment isn't something that can be legally or practically suppressed, before or after the fact.
The reputational risk HR now needs to manage
Put the pieces together and the practical impact becomes clear. Businesses will need to overhaul standard employment contracts, staff handbooks, and settlement templates to remove gagging clauses that will simply be unenforceable. Some legal experts also expect settlement behaviour to shift. If an employer can't guarantee complete confidentiality, they may be less willing to pay to settle a dispute, which could mean more claims being tested at tribunal instead of resolved quietly.
There's a reputational dimension too. Employees will be free to speak publicly about their experience even after a settlement. That means internal grievance and investigation processes need to be strong enough to resolve issues before they escalate into something aired in public or tested at tribunal, rather than after.
Building a culture where people report to you first
This is really where HR's job changes. If you can no longer legally guarantee silence, the only real lever left is making sure people would rather come to you first. That means giving employees a reporting route they actually trust: one that feels safe, confidential where it can be, and clearly separate from the person or team they might be raising a concern about.
Report + Support™ is built for exactly this. It gives employees a secure, low-barrier way to raise a concern early, before it becomes a claim, a resignation, or a public scandal, and gives HR the structure to investigate and resolve it properly while there's still time to do so internally.
If you want to see how it works in practice, book a demo and we'll walk you through Report + Support™.
What we're reading
Latest insights from the front lines of workplace culture.
The NDA Ban Under the Employment Rights Act: What It Means for HR
When you can no longer buy silence, you have to invest in safety. That's the shift HR teams now need to plan for. Some organisations have historically leaned on settlement agreements and non-disclosure agreements to resolve harassment complaints quietly, keeping the details contained and the reputational risk low. The Employment Rights Act 2025 closes that option down. Once the NDA ban comes into force, a culture of silence stops being something the law will let you enforce.
Third Party Harassment: The Blind Spot in Most Workplace Harassment Policies
Most harassment policies are built around one scenario: two colleagues, one incident. But a lot of harassment comes from outside the organisation - customers, clients, patients, delegates - and the law is catching up. Learn what third party harassment looks like in practice, where employer liability stands under the Worker Protection Act, and what changes from October 2026 under the Employment Rights Act, including a higher bar for "reasonable steps" and liability from the first incident.
Internal vs External Reporting Systems: What's Best for HR Teams?
Most organisations already have some way for staff to raise a concern: a line manager, an HR inbox, a form on the intranet nobody's touched since 2019. The question HR teams are asking now isn't whether they have a reporting system, it's whether the one they've got is good enough.
Feeling inspired?
Take the first step toward preventative misconduct management with a demo of our Report + Support™ platform. We can show you how to breakdown reporting barriers with anonymous 2-way messaging, and how to act before things escalate with name-matching and pattern-spotting across our analytics dashboard.
