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Rayner my parade! The importance of specialist advice.
Jemma Brimblecombe
In June the Ministry of Justice announced new legislation under the Victims and Prisoners Act 2024 which affects NDAs and confidentiality clauses.* Related guidance, published at the beginning of June, sets out the impact of this legislation on the enforceability of such agreements.
The guidance details the changes that will apply to the enforceability of NDAs and confidentiality clauses in England & Wales that are signed on or after 1 October 2025. These changes are not sector-specific and apply in all circumstances where NDAs and confidentiality clauses are used. NDAs that already exist or are signed before 1 October will be subject to the current rules and “might still be enforceable” in certain situations.
Enforceability of NDAs
The guidance states that “Individuals who are a victim of crime or reasonably believe they are a victim of crime… will be allowed to disclose information to certain individuals for certain purposes related to relevant conduct, even if their non-disclosure agreement seeks to prevent them from doing so”.
Under section 17 of the Victims and Prisoners Act 2024, NDAs will not be enforceable where the disclosure is about the “relevant conduct” and is made to defined groups, including law enforcement, qualified lawyers, regulated professionals and regulators, support services, and close family members. The disclosure must be made for a permitted purpose as defined within the guidance, which includes for the investigation and/or prosecution of crime, for seeking legal advice or professional support, for cooperating with the regulator, or for the purposes of seeking personal support. “Relevant conduct” is defined as the “criminal conduct that makes the person a victim of crime”.
The guidance also sets out a number of circumstances where disclosure is not permitted, notably where its primary purpose is releasing information into the public domain. It confirms that if a disclosure is made that does not meet the criteria for a “permitted disclosure,” then the NDA may be legally enforceable if there are no other protections that apply. Further details about what is considered a permitted disclosure and the circumstances in which can be made can be found in the guidance.
Considerations for employers
Although there are already limitations in place on how far NDAs can go in preventing disclosure, particularly in an employment context (for example, NDAs seeking to prevent an individual from making a protected disclosure under whistleblowing legislation are void), these new provisions will extend the class of people to whom disclosures can be made.
Also worthy of note is the fact that, in order to amount to a “protected disclosure” under whistleblowing legislation (disclosure of which cannot be prevented by an NDA), the person making the disclosure must have a reasonable belief that the disclosure is made “in the public interest”. There is no such requirement in relation to the disclosures covered by the new provisions and guidance.
It is therefore important for employers to take steps to prepare for the changes.
In particular, employers should:
- familiarise themselves with the new guidance and categories of individuals to whom disclosures may be made and in what circumstances (i.e. that it would be void for an NDA to seek to prevent);
- review and, if necessary, update the wording they tend to use in any NDA provisions within settlement agreements; and
- update any internal guidance issued to HR and other stakeholders on the use of NDAs. In particular, to consider how this interacts with other guidance relating to NDAs, including the SRA’s warning notice [hyperlink], and whistleblower considerations.
Further changes under the Employment Rights Bill
Separately, but also relevant to NDAs, the latest amendments** to the Employment Rights Bill which is currently making its way through Parliament include a very significant amendment regarding the use of NDAs.
If the legislation is passed as currently drafted, it will render void any provision in an agreement between an employer and a worker in so far as it attempts to prevent the worker making:
- an allegation or disclosure relating to discrimination or harassment (as defined in the Equality Act 2010); or
- an allegation or disclosure relating to the response of the employer to discrimination or harassment or to an allegation/disclosure made about such discrimination or harassment.
The provision is wide enough to cover any agreement between the employer and worker and would include confidentiality provisions in settlement agreements. It also relates to all forms of discrimination and harassment and all protected characteristics (i.e. not just sex discrimination / sexual harassment). The only exception seems to be a failure to make reasonable adjustments.
The protection relates to conduct (or allegations of conduct) amounting to harassment or discrimination committed by the employer or another worker of the employer or where the victim (or alleged victim) is the complainant or a colleague of that person.
This means that any wording in contracts, including settlement agreements, attempting to silence disclosures about allegations of discrimination or harassment will be void. Although this is already to some extent the case under whistleblowing legislation (as mentioned above), these new provisions go much further and include disclosures about the employer’s reaction to such matters.
The ban will not apply to “excepted agreements”, provided they meet conditions determined by the Secretary of State in secondary legislation. It has been suggested that this could include an NDA requested by a worker.
Whilst the Bill is not expected to receive Royal Assent before Autumn, this represents a very significant change if it is passed in its current form and another reason for employers to review their standard confidentiality provisions.
Legislation:
*Draft regulations, the Victims and Prisoners Act 2024 (Permitted Disclosures) Regulations 2025, have been laid before Parliament in exercise of the power conferred in section 17(4)(a) of the Victims and Prisoners Act 2024 (VPA 2024), which allows the Secretary of State to add to the list of permitted disclosures in section 17.
**Running list of amendments to the Employment Rights Bill published on 8 July 2025.
About the authors
Andy is an experienced employment lawyer and advises both senior employees and partners and employer clients on the full range of contentious and non-contentious employment matters.
Caroline is an investigations specialist. She advises organisations and individuals caught up in serious and complex criminal and regulatory investigations. She has extensive experience in this area and conducts internal investigations on behalf of her corporate clients when allegations of misconduct arise.
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