Confidentiality has, for decades, held a natural place in legal practice. Whether woven into a corporate negotiation or settling a sensitive workplace dispute, the non-disclosure agreement (or the NDA as its more commonly known) has offered structure. It’s helped contain risk, protect reputations, and mark a line under messy situations. That was the theory. In practice, things have become more complicated.
In recent years, the use of NDAs has come under sharper scrutiny. No longer viewed as a purely commercial tool, it has at times served to suppress allegations that fall far outside the commercial sphere – claims of discrimination, harassment, even criminal wrongdoing.
Agreements intended to prevent reputational harm have, in some cases, prevented disclosure that arguably needed to happen.
The law is beginning to respond, and while confidentiality remains lawful, its scope is about to narrow. From October 2025, new rules will come into force that place clear limits on what NDAs can do, especially when used to deal with serious allegations. Employers, advisers, institutions and regulators will all be affected. The changes are legislative, yes, but also cultural. Silence is no longer assumed to be neutral. Nor, in certain cases, will it be permitted.
What are NDAs actually for?
At their most basic, NDAs provide protection. They let parties speak freely during negotiations, allow sensitive material to be shared with safeguards, and prevent premature or damaging disclosures. For commercial clients, they’re essential. For employers, they can be useful. And when used carefully and fairly, they often serve both sides well.
But the employment context has thrown up difficult cases. Confidentiality clauses – sometimes standard, sometimes bespoke – have been used not only to close off proceedings, but to curtail what individuals are allowed to say about their own experience. People who’ve raised complaints about harassment or abuse have found themselves unable, or afraid, to speak beyond the four corners of the agreement they signed.
In some situations, that may have reflected their own choice. In others, it didn’t. And increasingly, the law is being asked to step in to define the point at which privacy tips over into suppression.
The legal changes ahead
The first statutory restriction arrives on 1 August 2025. From that date, universities and colleges in England will be banned from entering into NDAs where a complaint involves bullying, harassment, sexual abuse, sexual harassment or sexual misconduct. The rule comes from the Higher Education (Freedom of Speech) Act 2023, and applies regardless of the institution’s size, structure or internal preference. If a clause seeks to prevent disclosure of this type of complaint, it will have no legal effect.
Then, from 1 October 2025, a broader restriction takes hold. Under section 17 of the Victims and Prisoners Act 2024, any NDA that seeks to prevent a person from speaking about a crime (or something they reasonably believe to be a crime) will be unenforceable. It doesn’t matter who the disclosure is made to. The law protects conversations with police officers, regulators, therapists, legal professionals, and even close family – so long as the reason for disclosing is to seek help or redress.
This change matters. It marks a shift away from contract as containment and toward something more permissive. It protects those who speak before proving, and those who seek support before anything formal has begun.
The third reform: workplace misconduct
A further change is likely before the year is out. An amendment to the Employment Rights Bill will make any provision in an agreement between an employer and a worker (such as a settlement agreement or employment contract) void in so far as it purports to preclude the worker from making an allegation of, or disclosure of information relating to, relevant harassment or discrimination, or the employer’s response to the harassment or discrimination or making of the allegation or disclosure. The ban will not apply to “excepted agreements”, which it has been suggested may include NDAs requested by a worker. “Excepted agreements” will be defined in secondary legislation.
Standard templates won’t do. Pressure won’t be tolerated. The default will change.
Why is this happening now?
The path to reform hasn’t been sudden. It’s been shaped by years of testimony, investigation and pressure from people who’ve seen firsthand how confidentiality can silence, not protect. Campaigners like Zelda Perkins, who famously broke her own NDA to speak out against Harvey Weinstein, have helped bring the issue to the political fore. So too have journalists, lawyers, and regulators.
The Can’t Buy My Silence campaign, in particular, reframed the issue. It challenged the idea that private resolution was inherently virtuous. It pointed out that institutions often benefit from silence, while complainants are left navigating stigma or ongoing risk.
That narrative has now filtered into law. Confidentiality still has its place. But that place is no longer wherever we choose to put it.
What changes now?
Practically, organisations will need to rework their documents. NDAs that once relied on boilerplate confidentiality will need new wording, and in some cases, a new approach altogether. Legal advisers will need to give more careful guidance, particularly where there’s an imbalance of power. The risks of getting it wrong will increase, not just in enforceability, but reputationally too.
More fundamentally, the role of the NDA is shifting. It’s no longer a catch-all closure device. It can’t always be relied upon to contain reputational damage. It certainly can’t be used to stop a victim from seeking support, or from telling someone what they’ve been through.
In short, NDAs will remain, but the era of automatic silence is ending.
