Non-disclosure agreements (NDAs) and confidentiality have long been a feature of employment contracts and settlement agreements, used to protect confidential information and, at times, to bring disputes to a close. But in recent years, the use (and misuse) of NDAs in the workplace has come under increasing scrutiny, particularly where they’ve been seen to silence employees who have experienced harassment, discrimination, or other forms of unlawful treatment.
As part of the Employment Rights Bill, the government is introducing new safeguards to prevent NDAs from being used inappropriately. For employers, these changes will require a closer look at how NDAs are currently being used and whether existing practices are fit for purpose.
Need help reviewing your NDAs? Get in touch with our employment law solicitors to ensure your confidentiality clauses are compliant, clear and protect your business.
Contents:
What’s changing?
The reforms aim to make confidentiality clauses clearer and fairer, and to stop them from being used to deter workers from speaking up about misconduct. Under the new rules:
- NDAs will be banned where they prevent individuals from reporting criminal activity, or where they silence individuals who have been subjected to harassment, discrimination or other unlawful behaviour.
- Employers will need to use plain language when drafting confidentiality provisions, so that individuals understand their rights and what the NDA does (and doesn’t) cover.
- Legal advice for employees entering into settlement agreements will need to include specific advice on the effect of any NDA.
- Clauses that attempt to go further than the law allows could be rendered unenforceable.
The message from government is clear: NDAs must not be used to cover up wrongdoing, nor should they be written in a way that confuses or intimidates staff into silence.
Why it matters to employers
For many businesses, especially those with established HR processes or who have relied on template documents, these changes could have wide-reaching implications.
The days of using broad, catch-all confidentiality clauses are coming to an end. If your current NDAs attempt to restrict employees from discussing their experiences altogether or imply that they cannot speak to the police, a regulator, or even a therapist, you could be at risk of non-compliance and reputational harm.
Just as importantly, there’s an opportunity here to build trust with your workforce. By using NDAs more carefully and clearly, you can still protect sensitive confidential information without undermining employee rights or sending the wrong cultural signal.
How to prepare for the changes
To stay ahead of the curve, we recommend that employers take proactive steps to review and update their practices now. Key actions include:
- Review your standard documents now
Check employment contracts, settlement agreement templates, and any other documents that include confidentiality clauses. Ensure wording is clear, lawful and legally complaint. Our HR audit service can help identify any risks in your current documentation and ensure your NDAs and other employment practices are fully compliant and ready for the changes.
- Train your HR and legal teams
Make sure your internal teams understand the upcoming changes and how to apply them in practice, particularly during redundancy exercises or dispute resolution.
- Work with your legal advisers
If you don’t have in-house specialist legal support, consider seeking guidance from employment law specialists who can help ensure your templates and processes are robust and comply with the law.
- Improve internal reporting mechanisms
Make it easy for employees to raise concerns early by ensuring your grievance, whistleblowing and dignity-at-work policies are up to date and well communicated.
- Be clear with employees
When NDAs or confidentiality clauses are used, make sure individuals are told exactly what they mean, in plain English, and that this is covered in the independent legal advice they receive.
Final thoughts
The changes to NDAs are part of a wider cultural shift toward openness, transparency and accountability in the workplace. While this may require a rethink of old habits, it’s also an opportunity for employers to show leadership, protect their reputation, and strengthen employee trust.
Used appropriately, NDAs can still play a valid and valuable role in managing business risks. But moving forward, how you use them, and how clearly you communicate their purpose, will matter more than ever.
If you are unsure whether your NDAs are still fit for purpose, our employment law solicitors are happy to review your current processes, policies and documentation and talk through what the new rules could mean for your business.
