NDAs and gagging clauses at work: what the law says now

Generally speaking, non-disclosure agreements forbid an employee from publicly disclosing information about their employer. But what does this ‘information’ include?

What is an NDA?

A non-disclosure agreement (NDA), sometimes called a ‘gagging’ clause, is a promise to keep certain information confidential. In an employment context, NDAs can usually be found in:

• Employment contracts as a clause;
• A separate standalone document; and/or
• In a settlement agreement (often given to an employee upon leaving a company).

Often, NDAs refer to ‘confidential information’ about the company, such as trade secrets, client details and business plans.

The problem with NDAs is how widely they can be drafted and used. Many employers refer to ‘confidential information’ without being explicit about what that includes, leaving an employee confused and sometimes in fear about saying the ‘wrong’ thing.

Additionally, this broad approach to ‘gagging’ employees has inevitably resulted in some employers using these types of clauses to prevent employees from reporting a serious event within the workplace. Either directly to them or that they have witnessed.

This has become more of an issue in recent years, with female employees speaking up about sexual harassment in the workplace, and their employers have tried to rely on an NDA to prevent them from being able to report this to third parties, including the Police. This has picked up a lot of attention in the media, especially in the wake of the #MeToo campaign, which shone a light on the fact that many victims are being silenced by NDAs.

When can an NDA not be used?

A non-disclosure agreement cannot be used for certain disclosures, and any clause that attempts to do so has no legal effect. An NDA cannot be enforced for:

• An NDA cannot stop a worker from making a protected disclosure about things such as a danger to health and safety, an employer’s breach of duty or, more recently, sexual harassment (more on this below).
• Victims of crime. Since October 2025, an NDA cannot stop a victim of crime from speaking to certain people or parties, such as the Police or a solicitor.
• Preventing harassment. From October 2026, employers must take ‘all reasonable steps’ to prevent sexual harassment at work, including by third parties such as customers or clients.
• Equal pay. An NDA cannot prevent discussions about pay where the statutory protections for equal-pay discussions apply. 

What about ‘excepted agreements’?

The Employment Rights Act 2025 is set to introduce a change that intends to make an NDA void if it stops a worker from speaking about harassment or discrimination, or how their employer responded to it. There will be exceptions to this, known as ‘excepted agreements’, which give workers the right to talk regardless of what the clause says.

This change is designed to extend confidentiality provisions in a wide range of agreements, including settlement agreements and contracts of employment, and covers disclosures by both the affected worker and other workers with knowledge of the conduct.

In April 2026, the Government published a consultation on the proposed framework for these exceptions, and it was suggested that an NDA will not be enforceable unless:

• Independent advice is provided;
• The worker expressly agrees to the provision following that advice; and
• There is a cooling-off period after the agreement is made.

The details of the exception regime will be determined following further consultation, so watch this space for 2027 changes.

What should employers do now?

The rules on NDAs are tightening, and some changes are already in force. If you are an employer or business owner, it’s a good idea to:

• Review your templates, e.g. employment contracts, confidentiality agreements and settlement agreements.
• Separate business confidentiality from other disclosures in NDAs. Make sure clauses protecting trade secrets, for example, cannot be read as stopping an employee from reporting a crime, whistleblowing or speaking about harassment.
• Update your harassment policy and keep a record of what you have done.
• Approach settlement agreements with caution. If you are offering an employee a settlement agreement to resolve a complaint about discrimination, take legal advice first.

Words of wisdom for employees

If you have been offered an NDA or you have already signed one, it’s important to remember:

• An NDA cannot stop you from reporting a crime or from whistleblowing.
• Read what it actually covers; what does ‘confidential information’ include?
• Ask for legal advice before you speak up. Old NDAs may not be as restrictive as they look, meaning the clauses are void even if you signed them. If you’re unsure, seek advice before going any further.

How our employment law solicitors can help

Our expert employment law solicitors can provide advice on NDAs and all other aspects of employment law for employers and employees. Call us on 0117 325 2929 or complete our online enquiry form.