The end of silence clauses? What the government’s NDA ban means for corporate investigations

The UK government’s proposed ban on NDAs that silence victims of and those who allege workplace harassment and discrimination signals a major shift in how employers will need to handle sensitive workplace issues.

While much of the public debate has focused on the ethics of NDA use, HR leaders, senior executives and in-house legal teams now face a pressing question: how should they adapt their approach to investigations and settlement agreements in a post-NDA world?

This proposal, if adopted which seems highly likely, demands more than compliance. It requires a strategic rethink of how organisations manage complaints, protect their people and mitigate reputational risk.

Here, Fox Williams lawyers from our employment, regulatory and disputes practices share their perspectives on the implications and the practical steps employers should be taking now.

What’s changing?

On 7 July 2025, the government announced an amendment to the Employment Rights Bill to ban NDAs designed to silence individuals who raise allegations or disclose information relating to harassment and discrimination.

This means clauses commonly found in settlement agreements that restrict individuals from discussing details of their complaint with future employers, regulators or journalists will likely soon be off limits.

Although the precise legislative language is yet to be published, the message is clear: non-disclosure clauses will no longer be available as a means to conceal alleged harassment or discrimination, protecting reputational interests at the expense of accountability.

Why now?

This move comes after years of campaigning, particularly in the wake of the #metoo movement.  High-profile scandals have revealed a pattern of complainants being gagged through settlement agreements. When announcing the change Angela Raynor highlighted, however, that it is not just an issue in cases involving high profile individuals – NDAs are also routinely used when low paid and vulnerable workers make complaints.  The proposed legislation seeks to break that pattern.

Implications for corporate investigations

Thoughts from an employment lawyer: redefining confidentiality in workplace disputes

The protection afforded by the proposed amendment is far reaching. Whilst the precise scope will be set out in separate regulations, it appears that any allegation or disclosure may be caught, whether proven or not, whether made in good faith or not.  It covers employees and workers, and may be extended to a wider group for example, interns and those on work experience. All forms of harassment and discrimination under the Equality Act are covered, but not non-discriminatory bullying, nor, curiously, allegations or disclosures about a failure to make reasonable adjustments or about victimisation.  It is likely that allegations and disclosures about third party harassment of those who fall to be protected will also be caught.

Settlement agreements will still have a role to play in resolving disputes – employers can still safeguard trade secrets and other business-critical information. However, any attempt to stifle allegations and disclosures of harassment and discrimination after the legislation comes into force would be rendered null and void.  

Many employers may consider settlement makes less commercial sense if employees have free rein to publish their alleged treatment.  We may therefore see an increase in claims in an already overburdened Employment Tribunal system. With no or limited restriction on speaking out, employers will be reliant on the fact they are also unrestrained as a disincentive for an employee to speak out – not ideal as no one tends to win in a public tit for tat in the press.

To prepare, HR and legal teams should, once the details are clear:

• Audit and update standard agreements and policies.
• Train managers and HR teams to manage investigations without defaulting to confidentiality as a safety net.
• Focus on prevention through a culture of openness and accountability.

Thoughts from a regulatory lawyer: managing external scrutiny and reputational exposure

Without NDAs to contain sensitive allegations, organisations face a higher risk of public disclosure and regulatory interest as a result.

This shift should prompt senior leadership to ask: are our investigations defensible if scrutinised externally? Regulators will expect employers to demonstrate that their investigations are robust, fair and compliant with legal and regulatory standards.

Key steps include:

• Ensuring investigation procedures are aligned with regulatory expectations.
• Maintaining clear documentation to evidence fair and consistent handling of complaints.
• Reviewing whistleblowing channels and protections to encourage early internal reporting.
• Being mindful and aware of the potential ramifications at a firm governance level should the allegations become public.

Thoughts from a disputes lawyer: preparing for a more adversarial landscape

The inability to enforce confidentiality may embolden claimants to pursue tribunal or court claims rather than settle. Employers must be prepared for more disputes reaching public forums, and for less certainty that sensitive allegations can be contained through settlements.

Now is the time to:

• Stress-test investigation processes for procedural fairness.
• Review document retention and litigation readiness practices.
• Consider whether your organisation is adequately resourced to defend its decisions in an open setting.

A proactive approach will help mitigate the risk of findings being challenged in a tribunal/court, or aired in the media.

Supporting your investigations strategy

This reform raises the bar for employers. With NDAs no longer a shield, organisations must strengthen their investigation practices, ensure leaders are equipped to manage sensitive issues and foster a culture where concerns can be raised and addressed transparently.

At Fox Williams, our employment, regulatory and disputes teams work together to help clients manage investigations and protect their reputations.

Our team recently explored these issues in depth during the masterclass “Mastering Corporate Investigations: managing risks and protecting reputation in a regulatory landscape.”

The session, led by our investigations experts Joanna Chatterton, Sona Ganatra and Kofi Mills-Bampoe, is now available on demand.

To watch the webinar or discuss a confidential matter with our team, please use our secure contact form here.