Workplace Non-Disclosure Agreements: Key Points and Recent Developments
An NDA, often referred to as a confidentiality or “gagging” clause, is a legally binding agreement requiring certain information to remain confidential. In the workplace, NDAs typically appear in employment contracts, standalone agreements signed at the start of employment, or settlement agreements resolving disputes or ending employment. They commonly cover trade secrets, client information, intellectual property, business strategies, and details of any settlement, including payment terms. Many also include non-disparagement clauses and specify “permitted disclosures”, such as communication with legal advisers, regulators, or close family members.
Properly used, NDAs serve legitimate purposes. They protect sensitive commercial information, facilitate confidential resolution of disputes, and can benefit employees by keeping the circumstances of their departure private. However, their use has clear legal limits.
An NDA cannot prevent an individual from reporting a crime or making a protected disclosure under whistleblowing laws. Any clause attempting to restrict such rights is unenforceable. Regulators, including the Solicitors Regulation Authority, have emphasised that legal professionals must not draft NDAs in a way that inhibits reporting to law enforcement or regulatory bodies.
Recent legislative changes have significantly strengthened these protections. Since October 2025, provisions in NDAs that prevent victims of crime from sharing information with specified recipients—such as police, lawyers, or support services—are void if the agreement was signed after that date. The Higher Education (Freedom of Speech) Act 2023 has also introduced a complete ban on NDAs in universities in cases involving harassment or misconduct.
Further, from April 2026, sexual harassment has been explicitly recognised as a form of protected disclosure under whistleblowing law. This means individuals reporting such conduct are legally protected, and NDAs cannot override those protections.
Additional reforms are expected. The Employment Rights Act 2025 will, once implemented (anticipated in 2027), render void any NDA that attempts to prevent disclosure of harassment, discrimination, or failures to make reasonable adjustments. Although a limited exception for certain agreements may be introduced, strict conditions—including independent legal advice and a cooling-off period—are likely to apply.
In practice, modern NDAs provide narrower confidentiality protections than in the past. Employees should expect clear carve-outs allowing disclosures to appropriate parties, while employers should review and update existing templates to ensure compliance with evolving law.
Overall, the use of NDAs is shifting towards greater transparency and accountability. Careful drafting and informed legal advice are now more important than ever for anyone entering into such agreements.
The legal landscape around workplace NDAs is shifting, and a one-size-fits-all approach to drafting or signing is no longer safe. Whether you are entering into an NDA, reviewing a precedent, or seeking to understand the implications of one already signed, the detail matters. If you have any questions about a workplace NDA, get in touch with your solicitor for advice tailored to your circumstances.
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