New limitations on an employer’s ability to prevent allegations of discrimination and harassment becoming public are expected in 2027. The changes aim to foster a culture of openness and accountability, but will they in fact create a barrier to resolution?

Published: 12 May 2026
Author: Lauren Wilson

What’s proposed?

Section 24 of the Employment Rights Act 2025 (ERA 2025), once implemented, will render a contractual non-disclosure obligation void if it would prevent a worker from making an allegation of workplace harassment or discrimination or an allegation around the employer’s response to any such allegation. That is unless the non-disclosure obligation is contained within an ‘excepted agreement’.

Even with an ‘excepted agreement’ in place, workers will still be able to disclose allegations to certain prescribed persons, such as to the police or victim support services (known as ‘permitted disclosures’).

On 15 April 2026, the government launched a consultation seeking views on what conditions should be required for an agreement to be an ‘excepted agreement’; the categories of person to which permitted disclosures may be made; and whether the protection should, in the future, be extended to non-workers.

The government accepts that non-disclosure obligations (NDOs) can be appropriate in some cases, particularly where a worker wants to enter into a settlement agreement with their employer with the assurance that the matter will stay confidential. However, the consultation paper states that, currently, “Some employers have exploited the inherent power imbalance in the workplace to get NDOs signed by workers, creating a culture of secrecy and sometimes leaving perpetrators in place to offend again.” The government’s hope is that, by introducing the proposed changes, workers will be protected from coercion and will only enter into NDOs if fully informed, being empowered to make the decision which is right for them.

It is proposed that, for an agreement to be an ‘excepted agreement’, the worker must:

• receive independent advice on the effect of the NDO contained within the agreement from a prescribed person who has indemnity insurance in place and whose name is included in the agreement
• express their preference to enter into the agreement containing the NDOs in writing, having had independent advice – employers may even be prevented from proposing an agreement with  NDOs as an option
• have a right to withdraw from the agreement during a cooling off period (suggested as 14 days following the date of the agreement) or during a mandatory review period prior to entering into the agreement – the right to withdraw may apply to the agreement as a whole, rather than the NDO only. This could cause difficulties in the context of settlement agreements as an employer would not want to pay settlement money during any cooling off period.
• be given a physical copy of the agreement containing the NDOs after it is signed, with it also being available in an accessible format – there may also be a requirement for the agreement to be written in ‘plain English’
• only be prevented from making allegations of harassment or discrimination which has already taken place – meaning a provision seeking to prevent a worker from reporting a new instance would be unenforceable.

The government is also consulting on whether excepted agreements should be time-limited. This is not being actively proposed but it could be implemented if deemed appropriate following the responses to the consultation.

The legislation will apply to any contractual non-disclosure obligation, whether in a contract of employment, a standalone confidentiality agreement, a settlement agreement or otherwise. However, it will not apply retrospectively – only agreements entered into once the legislation is in force will be affected.

Potential impact

Currently, where allegations of discrimination and/or harassment have been made, settlement is often a common goal for the complainant and the employer. Both can be concerned about the prospect of being involved in a public hearing, particularly given the often-sensitive subject matter.

It is generally the norm that a settlement agreement will contain NDOs and will prevent the worker from speaking negatively about the employer going forward. This is often the main draw for the employer, in order to minimise reputational damage. Accordingly, if the proposed conditions on ‘excepted agreements’ are introduced, this may amount to an absolute barrier to settlement for some employers.

The conditions would apply not only to private settlement agreements, but those facilitated by ACAS (known as COT3 Agreements). COT3s currently benefit from being more straightforward than private settlement agreements and do not require the worker to take legal advice. Again, the changes may disincentivise employers, leaving an individual with a choice between a public hearing or no recourse at all.

Whilst the Government’s aims are commendable in theory, it will remain to be seen whether actual cultural change will be achieved by these changes or whether the legislation will simply push individuals towards otherwise unwanted litigation.

What can you do now?

We recommend reviewing your contracts of employment and staff policies to ensure that workers with concerns about harassment or discrimination are encouraged to report this internally, in a private forum. Similarly, you should ensure you have appropriate processes in place to investigate concerns and take effective action.

You may also wish to submit a response to the consultation, which is open until 8 July.

Various other consultations will be taking place as the Employment Rights Act 2025 phases in over 2026 and 2027. We are encouraging clients to participate as the responses will influence what changes are implemented. You can access those which are currently open here.