Recent changes to non-disclosure agreements: what do students need to know?

The Ministry of Justice published guidance on 2 June 2025 regarding the introduction of new legislation to prohibit the use of non-disclosure agreements (“NDAs”) by higher education institutions in relation to certain complaints under the Higher Education (Freedom of Speech) Act 2023 (“the Act”) [1]. The changes, which had originally been given Royal Assent in 2023, but were placed on hold when the new Government came into power, took effect on 1 August 2025 [2]. The higher education sector is leading the way when it comes to the use of NDAs and, while the changes will not see a total ban on NDAs, it paves the way forward for greater transparency and accountability during student misconduct proceedings.
 

What then are the implications for students facing misconduct proceedings? In answering this question, we consider the prior use of NDAs by higher education institutions, such as universities, break-down the recent changes, and leave you with some key takeaways should you find yourself involved in a student misconduct investigation.

1. what are non-disclosure agreements and when are they used?

In short, NDAs are legal contracts which place confidentiality requirements on certain information or ideas shared between parties, often in exchange for something of value. NDAs come in various forms: stand-alone agreements, contracts, or clauses within a larger agreement or contract.

In a higher education institutional setting, NDAs have historically been used to resolve student misconduct cases, in particular those involving allegations of harassment, sexual misconduct, bullying and other forms of abuse - essentially, allegations that may bring the University into disrepute or for some other reason would benefit from censure. NDAs of this nature have been the subject of heavy criticism. On one hand, NDAs can be seen to be an effective tool to protect sensitive and confidential information, however on the other, they can be seen as silencing complainants, as they typically require them to keep the details of their complaint confidential.

Previously, an NDA could not validly seek to prevent a person from reporting a crime to the police – a protection afforded by the common law – nor could it prevent a worker from whistleblowing [3]. However, this exemption did not permit a complainant making a disclosure about their complaint to support services and close family, irrespective of it encompassing criminal conduct they have been the victim of - this is changed under the new legislation [4].  

2. What are the recent changes?

The legislative changes enshrine the above common law position in statute, and from 1 August 2025, imposes a duty on registered higher education providers to ensure that they do not enter into any NDAs with students, staff or visiting speakers where they come forward with a complaint of sexual misconduct, abuse or harassment, or any other form of bullying or harassment [5]. This prohibition also applies to any constituent college, school hall or other institution of the higher education provider [6], marking a significant development in the way misconduct proceedings are resolved.

Under Section 1 of the Act, registered higher education providers must “take the steps that, having regard to the importance of freedom of speech, are reasonably practicable for it to take in order to achieve the objective”: “securing freedom of speech within the law for staff, members, students and visiting speakers” (“the objective”) [7].

In order to achieve this objective, the governing body of the higher education provider is responsible for ensuring it does not enter into NDAs in relation to a “relevant complaint” made. If it does, the legislation makes it clear that the NDA is void; it cannot be enforced and no legal obligation arise under it [8].

Under the Act, an NDA includes an agreement which purports to prevent individuals from:

1. Publishing information about a complaint relating to misconduct or alleged misconduct by any person, which includes sexual abuse, sexual harassment, bullying and harassment; and
2. Disclosing information about a complaint relating to misconduct or alleged misconduct by any person, which includes sexual abuse, sexual harassment, bullying and harassment (“relevant complaints”) [9].

It is important to note that the changes only ban NDAs for complaints that fall under the category of a relevant complaint. Universities may still enter into NDAs with respect to other complaints, such as academic misconduct, anti-social conduct, health and safety breaches, disorderly conduct and so on.  

3. How do the recent changes impact me?

If you are a student involved in misconduct proceedings in relation to sexual misconduct, abuse, harassment, or bullying, these changes may impact the following:

• No more confidential settlements for relevant complaints: Previously, universities could use NDAs to resolve cases quietly and confidentially, letting both parties move on. Now, if the complaint involves sexual misconduct, abuse, harassment, or bullying, these settlement options are no longer allowed.
   
• Exercise caution early in the misconduct process: It goes without saying that greater care should be given to the information disclosed to an Investigating Officer during a misconduct investigation, particularly if this information has the ability to be disclosed on a wider basis. Indeed, subsequent scrutiny of the evidence gathered or process deployed by a law enforcement agency or other tribunal ought to be presumed. To protect yourself, it is strongly recommended you consult with a legal representative before attending any interviews or meetings with Investigating Officers. Early legal advice can help you understand your rights and how best to respond to a complaint made against you.
   
• Balancing cooperation and protection: In general, higher education institutions are not strictly required to observe the same rules of evidence that typically apply in a court of law. Therefore, care should be taken with respect to the level of engagement you have with a misconduct investigation, particularly if it is likely that the complaint may result in a criminal investigation [10].However, there are risks associated with not providing detailed representations during a misconduct proceeding, such as an adverse finding being made against you, or a harsher penalty being imposed on you due to the lack of information supplied on your behalf. Managing this balance between cooperating with the university and safeguarding your legal rights requires careful thought and often legal guidance.

In short, these changes mean students must be more aware and deliberate in how they handle misconduct proceedings. Seeking legal advice early, understanding what can be disclosed, and approaching the process thoughtfully can help protect your reputation, your rights, and your future.

Further information
 

If you have any questions or require advice concerning issues relating to students or universities, please email a member of our team in confidence.

About the authors

Shannett Thompson is a Partner in the Regulatory Team and is the firm’s Training Principal. She trained in the NHS and commenced her career exclusively defending doctors. She provides regulatory advice predominantly in the health and social care and education sectors.

Emily is an Associate (Foreign Qualified) in them firm’s Regulatory team. She has experience in advising a range of regulators and regulated professionals in relation to procedures, governance, compliance, investigations and disciplinary proceedings in the legal, education, architecture and healthcare sectors.

Footnotes