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Opinion

The proposed ban on NDAs: Empowering victims or limiting choice?

Alice Ruffell, senior associate, employment at Walker Morris, discusses the proposed NDA ban’s impact on workplace transparency and victim empowerment.

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The proposed ban on NDAs: Empowering victims or limiting choice?
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The Government’s latest amendments to the Employment Rights Bill include a bold new proposal to ban confidentiality clauses in settlement agreements that silence victims of harassment or discrimination. If enacted, any non-disclosure provision that prevents a worker from speaking out about such allegations would be void.

Supporters argue this will let victims tell their stories and enable employers to address issues openly, while critics warn it could remove a valuable tool for resolving disputes amicably, swiftly and with the privacy of all involved.

The Government proposals state that the change would apply not only to employees and casual workers but potentially to contractors, trainees, and interns as well. The aim is clear: dismantle barriers that have historically protected wrongdoers and muted victims. By rendering confidentiality clauses unenforceable in cases of harassment or discrimination, the proposal seeks to foster transparency and accountability in every corner of UK workplaces.

The ban’s reach goes beyond employees and workers. It may also cover contractors hired for specific projects, apprentices and interns and consultants on retainer.

This broad scope underlines the government’s intention to eradicate enforced silence wherever an employment relationship exists. Employers relying on non-disclosure agreements (NDAs) to settle contentious claims will need to rethink their approach to dispute resolution.

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Proponents highlight several benefits:

·        Empowerment of victims: workers can share experiences without fear of legal reprisal.

·        Public accountability: employers can no longer quietly conceal systemic issues.

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·        Cultural shift: A move away from reactive, cover-up responses toward proactive culture change.

High-profile cases, such as the revelations in the entertainment industry, demonstrate how NDAs have shielded abusers and discouraged witnesses from speaking up.

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Eliminating NDAs could carry risks:

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·        Without the security of an NDA employers might opt to litigate rather than settle, pushing disputes into overburdened tribunals.

·        Claimants who wish to settle therefore could face protracted legal battles as their only recourse.

·        Claimant’s might abandon their genuine claims when faced with costly, stressful and public litigation processes.

Without confidentiality as a bargaining chip, parties may see less incentive to resolve matters quickly and discreetly.

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To mitigate such risks, the proposal includes the power to create “excepted agreements.” Drawing inspiration from Ireland’s 2024 NDA ban, an employee could request a confidentiality clause and receive independent legal advice before signing. Details on how these exceptions will operate in the UK remain sparse, but they signal a willingness to balance transparency with practical settlement mechanics.

While the ban’s commencement date is unclear, organisations should act now to prepare:

·        Review existing settlement and confidentiality policies.

·        Audit past agreements for overly broad NDAs.

·        Train HR and legal teams on lawful uses of confidentiality clauses.

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·        Strengthen reporting and investigation procedures for misconduct.

·        Cultivate leadership buy-in to model respectful behaviour.

Proactive steps can reduce reliance on NDAs and minimise legal and reputational risk.

In the long term, the absence of NDAs could drive employers to tackle the root causes of harassment and discrimination rather than sweeping them under the carpet. Organisations that already prioritise respect, equality, and accountability will find themselves at an advantage. Benefits may include: reduced employee turnover and absenteeism, enhanced employer brand and talent attraction and a genuinely inclusive, open work environment.

For others, the proposed ban offers a decisive moment to reassess and strengthen corporate culture before confidentiality clauses become history.

Employers and workers alike can share responsibility for safer, more equitable workplaces by confronting abuse and discrimination head-on. The proposed NDA ban promises to shift power toward victims, but its success will ultimately depend on whether organisations embrace deeper cultural reforms or simply find new legal mechanisms to keep difficult conversations behind closed doors.

Alice Ruffell, is senior associate, employment at Walker Morris

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