New NDA legislation set to shatter the culture of silence
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Among the most significant of these changes is an amendment currently progressing through the UK legal system: a reform to the Employment Rights Bill which focuses squarely on the use – and misuse – of non-disclosure agreements (NDAs).
Historically, NDAs served a clear and legitimate purpose. They were designed to protect sensitive business information such as intellectual property, trade secrets, or commercial strategy.
But over time, their use has drifted beyond this original intent, and increasingly, NDAs have been used to draw a line under disputes involving allegations of workplace harassment, bullying, and discrimination.
In some cases, that use risks silencing victims or witnesses of harassment or discrimination, leaving them unable to speak about their experiences, even to friends or family. This is where the changes seek to end their misuse to conceal misconduct or criminal acts.
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Building on the Worker Protection (Amendment of Equality) Act 2024, which introduced a proactive duty on employers to prevent harassment, the proposed new legislation aims to make void any NDA that seeks to gag individuals from speaking out about inappropriate behaviour. That includes clauses in settlement agreements and employment contracts which have traditionally served to keep such allegations confidential.
The shift is seismic, both legally and culturally. At its core, this legislation reasserts what many have argued all along: that no one should be contractually forbidden from reporting abuse or discrimination. Victims and witnesses must be able to speak openly without fear of retaliation or legal consequence.
The timing of this reform is no coincidence, with the last few years having seen a reckoning across multiple sectors including retail, entertainment, politics and tech, where high-profile figures have faced serious allegations of misconduct. In many cases, NDAs were reported as instrumental in suppressing these claims for years, allowing harmful behaviours to persist unchecked.
With that backdrop, the reform is about more than just legal compliance. It reflects a growing public consensus that transparency and accountability are non-negotiable in modern workplaces, removing a potential route that retains a culture of silence.
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But as with all sweeping changes, this one is not without its cautions, as some legal experts and advocates for victims have expressed concern that a blanket restriction on NDAs could, unexpectedly, negatively impact those it aims to protect. For some individuals, confidentiality is not a muzzle but a shield, providing the comfort of a private path to closure.
Removing the option entirely may limit choices for victims who don't wish their most vulnerable moments to become public knowledge. As the legislation takes shape, lawmakers and employers will have to strive to strike the right balance: preserving the right to speak out whilst also allowing those who want privacy a means to achieve it.
Employers are currently required not only to respond appropriately to allegations but to demonstrate that they have created a working environment where harassment and discrimination are not just dealt with, but also that they have actively put preventative measures in place. If they fail to do so they will no longer be able to rely on NDAs to avoid adverse publicity and reputational damage. The emphasis here is to shift from reactive crisis management to proactive culture-building.
For organisations, this is a moment of reckoning. Reputational, legal, and ethical stakes are high and, in an age where trust and transparency are paramount, failing to evolve is not an option.
Paul Sheerin is chief executive of Scottish Engineering.
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