(3 min read)
The UK Government has just published an amendment to the Employment Rights Bill which will ban employers from using confidentiality clauses seeking to prevent a worker from speaking about allegations of work-related harassment or discrimination. In addition, new guidance on forthcoming changes to confidentiality clauses, also known as non-disclosure agreements, making them unenforceable against victims of crime in relation to disclosure of information to certain groups, including the police and victim support services, will come into effect on 1 October 2025.
Ban on NDAs covering harassment and discrimination at work
The Government has announced that it is introducing an amendment to the Employment Rights Bill which will make void any provision in an agreement between an employer and a worker which tries to prevent the worker making an allegation or disclosure about harassment or discrimination. It also includes disclosures about how the employer responds to such an allegation or disclosure.
The protection is framed widely and will apply to the employer’s workers and former workers as well as contractors, trainees and those on work experience. It covers victims or alleged victims of harassment or discrimination and also extends to an employer’s other workers who are witnesses to such behaviour as well.
This amendment will need to be debated in the House of Lords before returning to the House of Commons, if passed, for MPs’ approval. The Bill is expected to receive Royal Assent later this year.
New guidance on NDAs and victims of crime
In another development, the government has published new guidance which sets out that non-disclosure agreements signed on or after 1 October 2025 will not be enforceable against victims of crime (or those who reasonably believe they are victims of crime) in relation to the disclosure of information about relevant conduct to the following groups and for the following purposes:
- Police or other bodies which investigate or prosecute crime, for investigating or prosecuting the relevant conduct.
- Qualified lawyers, for seeking legal advice about the relevant conduct.
- Regulated professionals (including regulated healthcare professionals), for obtaining professional support in relation to the relevant conduct.
- Victim support services, for obtaining support in relation to the relevant conduct.
- Regulators, for cooperating with the regulator in relation to the relevant conduct.
- To a person authorised to receive information on behalf of any of the above, for the relevant purposes mentioned above.
- A victim’s close family, for the purpose of obtaining support in relation to the relevant conduct.
It is important to note that for these purposes a victim of crime does not have to have told anyone about that crime or reported it to the police. The guidance also states that there does not have to be a formal investigation or a conviction for someone to be a victim of crime or reasonably believe they are a victim of crime.
The Government has also published draft regulations in exercise of its power to add to the list of persons to whom disclosures are permitted. They will also include:
- the Criminal Injuries Compensation Authority, for the purpose of a claim for compensation in relation to the relevant criminal conduct.
- A court or tribunal, in relation to a decision of the Criminal Injuries Compensation Authority made in connection with a claim mentioned above.
- A person authorised to receive information on behalf of either of the above, for the relevant purposes mentioned above.
The amendment to the Employment Rights Bill is a significant change. While campaigners have long fought for a change in the law, others are voicing concerns. There are fears that victims will have less control over information about them entering the public domain, which could prevent some victims coming forward to raise complaints. For employers, it could impact any decision whether to settle a claim for harassment or discrimination where it cannot rely on confidentiality and it will need to give careful consideration to reputational damage in such cases. Employers may decide that the better strategy is to defend a claim which safeguards its future reputation.
In the meantime, employers should review their policies on drafting agreements and settling claims which contain confidentiality clauses to ensure they will comply with the new legislation and familiarise themselves with the new government guidance to make sure that any non-disclosure agreements entered into on or after 1 October 2025 comply with the new legislation in relation to disclosure of information by victims of crime.
