Employment Rights Act 2025

The Employment Rights Act 2025 provides that any agreement preventing a worker from making allegations or disclosures about harassment or discrimination, including disclosures about the employer's response to such allegations, will be void. It does this by inserting a new s. 202A into the Employment Rights Act 1996.

In April 2026, the government published a consultation paper on how the measures in the Act will prevent the misuse of non-disclosure agreements (NDAs) in cases of workplace harassment and discrimination - and how the 'excepted agreements' regime might work.

The consultation closes on 8 July 2026, and the new right will come into force sometime in 2027. The new rules will not apply retrospectively to existing agreements.

The new provisions will make invalid any provision in an agreement between an employer and a worker which purports to prevent the worker from making an allegation of, or a disclosure of information relating to:

• harassment or discrimination, or
• an employer’s response to the harassment or discrimination, or allegation or disclosure

There is however an exemption for what are called ‘excepted agreements’ to recognise that, in some limited circumstances, it may be appropriate to allow an NDA to stand, for example where an NDA is requested by a worker.

The key proposals on ‘excepted agreements’ are as follows:

• A worker will need to receive written independent advice before entering into an excepted agreement which will need to cover the terms, effect and legal limitations of the NDA. The agreement must name the adviser, and the adviser will have to have indemnity insurance. Employers will not be statutorily required to pay for the employee’s advice.
• Workers will need to express their preference to enter into an excepted agreement in writing to their employer, following the receipt of independent advice. There will not be a prescribed style or form of expressing this preference, but the independent adviser might suggest the best way to provide this preference, e.g. in an email or a letter.
• There will be a cooling off period of 14 days following the signing of an excepted agreement, during which the worker can withdraw without penalty. The consultation also asks whether a worker should be allowed to waive this cooling off period or whether the 14-day period should be shortened to perhaps 7 or 10 days.
• A written copy of the excepted agreement should be provided to all parties in a format accessible to the parties.
• An expected agreement can only be entered into where it would prevent a worker from speaking out about an incidence of harassment or discrimination which has already taken place. It cannot be entered into to prevent a worker from speaking out about harassment or discrimination that may occur in the future.
• The confidentiality obligations should be time limited and subject to a statutory maximum duration.       
• Even where a worker has entered into an excepted agreement, it’s proposed that they will be able to make otherwise confidential disclosures to certain groups or individuals specified in the regulations. These include law enforcement lawyers,  regulated professionals, victim support services, regulators (such as the Solicitors Regulation Authority and EHRC), ACAS, trade union representatives, authorised intermediaries, and close family. 

The consultation also asks whether the new rules should apply in future to individuals who are not a worker of the employer, e.g. agency workers and secondees, work experience interns and trainees, student nurses and midwives, certain NHS professionals, and vulnerable groups of self‑employed individuals.

Note that an excepted agreement will not be able to prevent workers from whistleblowing (i.e. by making ‘protected disclosures’) or from reporting a crime.