Transcription

• Speaker #0

  Today in the Indicator HR and Employment Law podcast, we're discussing legislation which will change the way non-disclosure agreements operate. The Employment Rights Act 2025 contains provisions which, once brought into force, will make void and unenforceable any non-disclosure agreement preventing a worker from making allegations or disclosures about harassment or discrimination, including disclosures about the employer's response to such allegations. These restrictions, which are expected to be brought into force during 2027, will not apply to accepted agreements, the conditions for which will be set out in regulations. As a preparatory step towards bringing these non-disclosure agreement restrictions into force, the government has recently launched a consultation on regulations to prevent the misuse of non-disclosure agreements. The consultation seeks views on conditions for accepted agreements, with the government proposing that a series of conditions must be met for a non-disclosure agreement to qualify as an accepted agreement. In summary, the government proposes that the worker must receive independent legal advice before entering the non-disclosure agreement, the worker will need to confirm in writing their preference to enter the non-disclosure agreement, that a 14-day cooling-off period be introduced (with views being sought on whether workers should be able to waive the cooling-off period), and that a written copy of the accepted agreement must be provided to all parties so they can better understand what they have agreed to. Views are also being sought on whether the agreement should be written in plain language, and the non-disclosure agreement will only be able to relate to conduct that has already taken place and will not apply to conduct which occurs in the future. Views are also being sought on whether non-disclosure agreements must be time-limited. The government proposes that even after they have signed an accepted agreement, workers will be entitled to make permitted disclosures to specified individuals. It proposes that this should include any person or body with law enforcement functions: qualified lawyers; registered foreign lawyers; regulated professionals; tax advisors; any individual or organisation providing victim support services; a regulatory body, an individual or organisation that provides services for the purpose of advising individuals on their employment rights, conciliation, arbitration and mediation as it relates to settlements; a trade union representative or equality representative; a person who is authorised to receive information on behalf of a person specified for the aforementioned purposes; or close family members for the purpose of receiving support in respect of the relevant harassment and discrimination. The government is also seeking views on whether to include prospective employers, recruiters or a wider group of family and friends in the list of persons to whom permitted disclosures can be made. Further views are sought on whether the protection against non-disclosure agreements should be extended in the future to other categories of individuals who do not fit within the usual statutory definition of worker but who are also vulnerable to the misuse of non-disclosure agreements in cases of discrimination or harassment. For example, this may include agency workers, those on a work experience placement and nurses and midwives in training. The government is also considering whether certain groups of self-employed individuals should also be protected. The consultation closes on 8 July 2026. We will track developments and keep you updated. Look out for further episodes in this series to stay up to date on all things HR and employment law related.