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Changes to the ICAS Code of Ethics – what do the changes mean for ICAS firms?
Zoe Beels
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.
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].
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:
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.
If you are a student involved in misconduct proceedings in relation to sexual misconduct, abuse, harassment, or bullying, these changes may impact the following:
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.
If you have any questions or require advice concerning issues relating to students or universities, please email a member of our team in confidence.
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.
[1] The Guidance also addresses impending less restrictive prohibitions which will be introduced for businesses and individuals under the Victims and Prisoners Act 2024.[1]
[2]“Freedom of Speech: Universities”, Volume 766: debated on Monday 28 April 2025, Hansard, UK Parliament.
[3] Guidance, Victims and Prisoners Act 2024: changes to non-disclosure agreements, published 2 June 2025, Ministry of Justice [current position].
[4] Victims and Prisoners Act 2024, Section 17; Guidance, Victims and Prisoners Act 2024: changes to non-disclosure agreements, published 2 June 2025, Ministry of Justice [Changes to non-disclosure agreements].
[5] The Higher Education (Freedom of Speech) Act 2023, Part A1 Section 11.
[6] The Higher Education (Freedom of Speech) Act 2023, Part A4 Section 1-2.
[7] The Higher Education (Freedom of Speech) Act 2023, Part A1 Section 1-2.
[8] The future of the Higher Education (Freedom of Speech) Act 2023, Policy Paper, published 26 July 2025; The Higher Education (Freedom of Speech) Act 2023, Part A1 Section 11.
[9] The Higher Education (Freedom of Speech) Act 2023, Part A1 Section 12(b).
[10] If the allegation of misconduct is reported to the Police, then the criminal process usually takes priority over a disciplinary investigation. Any internal process relating to the same facts should ordinarily be paused until the criminal matter is concluded.
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Zoe Beels
James Bell
Tabassum Zahedi
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