Writing in NLJ this week, Louise Price of Doughty Street Chambers and Jennifer Leeder of Birketts examine the proposed regime under the Employment Rights Act 2025.
Terms preventing workers from discussing relevant harassment or discrimination will become void, including clauses in settlement agreements and ACAS settlements.
However, regulations may preserve limited ‘excepted agreements’. Proposed safeguards include independent written legal advice, informed consent and a 14-day cooling-off period.
Whether employers should be allowed to suggest an NDA remains unresolved. A prohibition could complicate negotiations, while cooling-off rights could make settlements immediately before tribunal hearings harder to secure.
Existing NDAs will not be retrospectively invalidated, and commercial confidentiality agreements remain unaffected.
The authors urge employers to review templates and remind lawyers that NDAs ‘should not be used routinely’ under regulatory guidance.
