Briefing | Could new rules on NDAs prevent UK workers from being silenced?

How do employers feel about NDAs? 

In the CIPD report How employers are tackling bullying and harassment at work, we found that most employers would not strongly object to the removal of NDAs in the workplace. Nearly half (48%) of employers would support a ban on the use of NDAs, with just 18% opposing, while 20% were ambivalent (don’t support or oppose). A further 14% didn’t know whether they would support a ban.  

The report also found that their use was not uncommon, with over a fifth (22%) of respondents to our 2024 survey of 2,000 employers saying their organisation used NDAs when dealing with allegations of sexual harassment. In contrast, 44% said they did not use NDAs in this way and a further 34% did not know, highlighting that awareness around their use in some organisations may be low.  

Overall, this shows that a ban on the use of NDAs could have widespread support from many employers themselves and not only from those who have been subject to harassment or discrimination. 

Arguments against reforms of NDA legislation 

Some lobby groups, such as Maternity Action, are opposed to the end of NDAs. In its response to the Legal Services Board call for evidence on the use of NDAs, it stated: “for many women who have experienced unfair or sometimes illegal treatment at work due to their pregnancy, NDAs can be a straightforward, quick and far less traumatic way to reach a settlement and put a bad experience behind them.”

Further, the National Alliance of Women’s Organisations, in evidence to the Women and Equalities committee select committee inquiry into the use of NDAs, also opposed a blanket ban of NDAs, arguing instead for steps to improve how they are regulated and used in practice. 

Through interviews and focus groups, CIPD members have expressed a variety of opinions on the use of NDAs and a potential ban, with polarising views being expressed. Some senior HR practitioners and CIPD members who are employment lawyers raised concerns that a move to ban or significantly restrict the use of NDAs around issues such as harassment or discrimination would be premature because it could have unintended negative consequences on those impacted by such behaviour. 

However, other senior HR practitioners took an opposite view and held strongly that banning the use of confidential settlement agreements in harassment or discrimination cases would be the right thing to do.  

Policy-makers in the UK have already taken some steps to ensure NDAs are not misused. For example, changes to the law were introduced in April 2024 to make it clear that NDAs cannot be legally enforced if they prevent individuals from reporting a crime and that information related to criminal conduct can be discussed with the police or qualified and regulated lawyers.

The CIPD has published good practice guidance on the appropriate and responsible use of NDAs but as our survey shows, they are still often used in relation to incidents of sexual harassment at work. 

What could the UK learn from Ireland? 

The challenge for policy-makers is to find an approach to regulating the use of NDAs that ensures they are only used for the benefit of those who have been impacted by sexual harassment or discrimination, rather than to cover up wrongdoing. 

Campaigners such as Zelda Perkins – founder of the Can’t Buy My Silence campaign and a former PA to the jailed Hollywood film producer Harvey Weinstein – are pushing for the UK to follow the legislative approach taken in Ireland. 

The Irish Government has introduced a general ban on the use of NDAs by employers with prospective, current or former employees where there have been allegations of discrimination, harassment or sexual harassment either at the workplace or during the course of their employment.  

However, restrictions on the use of NDAs do not apply:  

• Where the NDA is a term of settlement arising from mediation conducted by the Workplace Relations Commission (WRC), Ireland’s version of Acas.  

• In the case of an ‘Excepted NDA’. This provides that employers can enter into an NDA if it is at the request of the employee and prior to entering into the agreement the employee has received independent legal advice in writing, paid for by the employer. 

This approach could be a workable solution that the UK Government may consider replicating when bringing forward legislation in the Houses of Parliament. 

Finding an effective solution 

Changes to the law alone though will not prevent toxic work cultures or address poor people management practices which are often the underlying causes of sexual harassment or discrimination. Where there are power imbalances, a lack of awareness of people’s rights and a lack of confidence to enforce them in many organisations, individuals may also feel they have no choice but to sign an NDA. 

This creates a need for improved enforcement of employment rights and a well-publicised channel where employees can complain and get advice. Acas is also in need of further resources to improve its capacity to provide advice and support to help SMEs improve their people management capability and ensure they comply with the law. Otherwise, any change in legislation is likely to address the symptoms and not the cause. 

The CIPD will be making these broader points to the UK Government if and when any new proposals are brought forward on the regulation of NDAs. We will continue to consult closely with members to ensure their views help inform the design of any new legislation in this area.