2025 NDA Ban: Revolutionising UK Harassment Settlements – Critical Insights Everyone Must Know!

The End of Silence: Understanding the 2025 Ban on NDAs in UK Harassment and Discrimination Cases

Something fundamental is shifting in how workplace harassment and discrimination cases are resolved across the UK. The upcoming prohibition on non-disclosure agreements (NDAs) in harassment and discrimination settlements represents one of the most significant changes to employment law in recent years. This legislative transformation, embedded within the Employment Rights Bill amendments, directly addresses the widespread concern that NDAs have been weaponised to silence victims and shield perpetrators from accountability.

The misuse of these confidentiality clauses has created a culture where workplace misconduct remains hidden from public view. Legal professionals, HR managers, and business leaders have long recognised that while NDAs served legitimate purposes in commercial disputes, their application in harassment cases often prioritised organisational reputation over victim welfare. Years of mounting pressure from advocacy groups, high-profile cases, and parliamentary scrutiny have finally culminated in this decisive legislative response.

What drives this change beyond moral imperative? The answer lies in the recognition that transparency serves as both a deterrent and a catalyst for cultural transformation. When victims can speak freely about their experiences without fear of legal repercussions, it creates an environment where accountability becomes unavoidable. The ban specifically targets confidentiality provisions that prevent discussion of harassment and discrimination allegations, while maintaining other legitimate confidentiality protections in settlement agreements.

This regulatory shift demands your immediate attention whether you represent employers navigating compliance requirements or employees seeking justice. The implications extend far beyond legal technicalities, touching every aspect of workplace culture, risk management, and dispute resolution strategies. Legal practitioners must recalibrate their settlement negotiations, while HR professionals face the challenge of rebuilding trust in internal processes that can no longer rely on confidential resolutions.

Understanding these changes requires more than surface-level awareness. The complexity of Employment Law Harassment and Discrimination cases, combined with the nuanced exceptions and practical applications of the new rules, demands comprehensive knowledge that this analysis provides.

Defining Harassment and Discrimination in the UK Workplace

Workplace harassment under the Equality Act 2010 encompasses unwanted conduct that violates dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment. The legal framework evaluates such behaviour through the lens of both subjective impact on the victim and objective assessment by a "reasonable person" standard. This dual approach ensures that claims are neither dismissed due to oversensitivity nor accepted without proper scrutiny.

"The dual approach of subjective impact and objective assessment ensures that harassment claims are neither dismissed due to oversensitivity nor accepted without proper scrutiny." - Nick from Litigated

The Act protects individuals based on nine specific characteristics:

• Age
• Disability
• Gender reassignment
• Marriage and civil partnership
• Pregnancy and maternity
• Race
• Religion or belief
• Sex
• Sexual orientation

Harassment can manifest differently across these categories, from age-related jokes that undermine older workers to religious discrimination that creates hostile working conditions for employees of particular faiths. The conduct need not be intentional to constitute harassment; the impact on the recipient remains the primary consideration.

Sexual harassment deserves particular attention within employment law harassment and discrimination frameworks. Unlike other forms of harassment, sexual harassment doesn't require a connection to protected characteristics under the Equality Act. Any unwanted conduct of a sexual nature that violates dignity or creates an adverse environment falls within this definition. This includes everything from inappropriate comments and unwelcome physical contact to the display of offensive material or persistent requests for sexual favours.

Discrimination operates alongside harassment but involves different legal tests and remedies. Direct discrimination occurs when someone receives less favourable treatment because of a protected characteristic, while indirect discrimination happens when apparently neutral policies disproportionately disadvantage particular groups. Victimisation provides additional protection for those who raise concerns about discrimination or support others' complaints, recognising that retaliation often follows legitimate grievances.

The legal framework distinguishes between conduct that might be considered merely inappropriate and behaviour that crosses the threshold into unlawful harassment. Context matters enormously in these determinations. A single incident might constitute harassment if sufficiently serious, while repeated minor incidents could cumulatively create a hostile environment. Courts consider factors including the frequency of conduct, its severity, whether it was physically threatening or humiliating, and its impact on the victim's work performance and well-being.

The Legal Landscape: Key Legislation Governing Workplace Conduct

The Equality Act 2010: Foundation of Protection

The Equality Act 2010 consolidates previous anti-discrimination legislation into a comprehensive framework that governs most employment relationships in England, Scotland, and Wales. This legislation doesn't merely prohibit discrimination; it establishes positive duties requiring employers to actively promote equality and prevent harassment. The Act's scope extends beyond traditional employment contracts to cover workers, apprentices, and in some circumstances, contractors and volunteers.

Vicarious liability represents one of the Act's most significant enforcement mechanisms. Employers can be held responsible for discriminatory acts committed by their employees during the course of employment, regardless of whether the employer authorised or knew about the conduct. This principle encourages proactive management of workplace behaviour rather than reactive responses to complaints. However, the Act provides a statutory defence where employers can demonstrate they took "all reasonable steps" to prevent the discriminatory conduct.

The reasonable steps defence requires more than token policies or occasional training sessions. Employment tribunals expect evidence of comprehensive measures including regular policy reviews, effective training programmes, robust reporting mechanisms, and swift responses to complaints. Documentation becomes crucial in establishing this defence, as employers must demonstrate both the substance and effectiveness of their preventive measures.

Recent case law has expanded the interpretation of reasonable steps to include considerations of workplace culture, senior leadership involvement, and the adequacy of resources allocated to equality initiatives. Employment law harassment and discrimination cases increasingly scrutinise whether employers have created environments where misconduct is less likely to occur, rather than simply responding to incidents after they happen.

The Protection From Harassment Act 1997: Broader Protections

Originally enacted to address stalking and persistent harassment in personal relationships, the Protection from Harassment Act 1997 has found important applications in workplace contexts. The Act requires a "course of conduct" involving at least two related incidents that cause alarm or distress to the victim. Unlike the Equality Act, this legislation doesn't require any connection to protected characteristics, making it particularly useful for addressing workplace bullying that might not fall within discrimination law.

The Act's dual criminal and civil provisions create additional enforcement options beyond employment tribunal claims. Criminal prosecutions can result in restraining orders and custodial sentences, while civil actions can lead to injunctions and damages. This parallel framework often provides more immediate relief than employment tribunal proceedings, particularly where ongoing harassment requires urgent intervention.

Employment law harassment and discrimination practitioners increasingly rely on the Protection from Harassment Act where conduct falls outside equality legislation or where urgent relief is required. The Act's broad definition of harassment can capture behaviour that might not meet the dignity threshold under the Equality Act, providing complementary protection for workplace victims.

The Worker Protection (Amendment of Equality Act 2010) Act 2023: Proactive Duties

The 2023 amendments introduce a positive duty requiring employers to take reasonable steps to prevent sexual harassment of their employees. This represents a significant shift from reactive complaint-handling to proactive prevention strategies. The legislation empowers employment tribunals to increase compensation awards by up to 25% where employers fail to comply with this duty.

The amendments also revive third-party harassment provisions, making employers potentially liable for sexual harassment by customers, clients, or other third parties where they fail to take reasonable steps to protect their employees. This expansion recognises that workplace harassment often involves individuals outside the direct employment relationship, particularly in customer-facing roles.

Implementation of these duties requires employers to assess risks, implement preventive measures, and regularly review their effectiveness. The legislation doesn't prescribe specific steps but expects employers to tailor their approaches to their particular workplace risks and circumstances. This flexibility creates opportunities for innovative approaches but also uncertainty about compliance standards.

The Shift in Strategy: How the NDA Ban Changes Settlement Agreements

The historical use of NDAs in harassment and discrimination settlements created a system where victims traded their right to speak publicly for financial compensation and confidential resolution. These agreements typically contained broad confidentiality clauses prohibiting any discussion of the allegations, the employer's response, or the settlement terms. While such arrangements might have served legitimate business interests in commercial disputes, their application to harassment cases often perpetuated harmful workplace cultures.

Under the 2025 ban, confidentiality clauses relating to harassment and discrimination allegations become void and unenforceable. This doesn't eliminate settlement agreements entirely but fundamentally alters their structure and strategic value. Employers can no longer rely on confidentiality to protect their reputations from public scrutiny of their handling of misconduct allegations.

The prohibition specifically targets clauses that prevent victims from discussing the facts giving rise to their complaints, the employer's response to those complaints, and the terms of any settlement reached. However, certain confidentiality provisions may remain enforceable, including those protecting genuinely confidential commercial information unrelated to the harassment allegations.

What does this mean for settlements negotiations? Employers may become more reluctant to settle cases without thorough investigation, knowing that details cannot be kept confidential. This could lead to more contested employment tribunal hearings as parties lose incentives for early resolution. Alternatively, it might encourage more comprehensive internal processes as employers recognise that their response to allegations will face public scrutiny.

The ban also affects victim choice and autonomy. While transparency serves important public interests, some victims prefer confidential resolution to avoid ongoing public attention or potential retaliation. The legislation attempts to balance these concerns by preserving victims' rights to confidentiality about their personal circumstances while preventing employers from buying silence about systemic issues.

Employment law harassment and discrimination specialists must now advise clients on settlement strategies that account for potential public disclosure. This requires careful consideration of which aspects of settlements can remain confidential and how to structure agreements that comply with the new requirements while still providing meaningful resolution for both parties.

Employer Responsibilities and Proactive Measures in the New Landscape

Strengthening Policies and Procedures

The elimination of confidential settlements places renewed emphasis on preventing harassment and discrimination rather than simply managing their aftermath. Employers must ensure their policies clearly communicate that harassment and discrimination will not be tolerated and that confidentiality agreements cannot be used to silence victims. These policies should be regularly updated to reflect legal developments and emerging best practices.

Effective policies go beyond mere compliance statements to provide practical guidance on recognising inappropriate behaviour, reporting procedures, and consequences for misconduct. They should address both obvious forms of harassment and subtler behaviours that might contribute to hostile work environments. Clear examples help employees understand boundaries while avoiding overly prescriptive rules that might stifle legitimate workplace interactions.

Policy development should involve consultation with employee representatives, legal advisers, and equality experts to ensure comprehensive coverage and practical applicability. Regular review processes help identify gaps or outdated provisions that might undermine effectiveness. The goal is creating documents that genuinely guide behaviour rather than merely providing legal protection.

Policy requirements should include:

• Regular policy updates reflecting legal developments
• Clear communication of zero tolerance
• Practical guidance on recognising inappropriate behaviour
• Defined reporting procedures
• Clear consequences for misconduct

Documentation and communication strategies become crucial for policy effectiveness. Employers should maintain records of policy distribution, training attendance, and acknowledgment of receipt. These records support the reasonable steps defence and demonstrate commitment to prevention rather than mere reactive compliance.

Training, Awareness, and Fostering an Inclusive Culture

Comprehensive training programmes form the cornerstone of effective harassment prevention strategies. These programmes should cover legal requirements, company policies, reporting procedures, and the practical skills needed to recognise and address inappropriate behaviour. Training must be regular, engaging, and tailored to different roles and responsibilities within the organisation.

Management training requires particular attention given supervisors' roles in creating and maintaining workplace culture. Managers need skills in handling complaints, conducting preliminary investigations, and supporting both complainants and accused individuals during formal processes. They should understand their legal obligations and the potential consequences of inadequate responses to harassment allegations.

Creating an inclusive culture requires more than periodic training sessions. It demands ongoing commitment from senior leadership, regular communication about values and expectations, and systems that reinforce positive behaviours while addressing problems promptly. Employee resource groups, mentoring programmes, and regular culture surveys can help identify issues before they escalate into formal complaints.

"Investment in prevention becomes not just morally imperative but strategically essential for business success in the post-NDA era." - Nick from Litigated

The new transparency requirements make cultural initiatives more important than ever. Employers cannot rely on confidential settlements to protect their reputations from the consequences of poor workplace cultures. Investment in prevention becomes not just morally imperative but strategically essential for business success.

Robust Reporting and Investigation Mechanisms

Effective reporting systems must be accessible, trustworthy, and capable of handling complaints sensitively while ensuring thorough investigation. Multiple reporting channels accommodate different preferences and circumstances, including direct supervisor reporting, HR departments, anonymous hotlines, and external services. The key is ensuring that all employees know how to report concerns and feel confident that their complaints will be taken seriously.

Investigation procedures should be prompt, impartial, and thorough. Employers need trained investigators who understand legal requirements, evidence gathering techniques, and the sensitivity required when dealing with harassment allegations. Clear timelines help manage expectations while ensuring that investigations don't drag on unnecessarily.

Documentation throughout the investigation process serves multiple purposes. It provides evidence for any disciplinary action, demonstrates compliance with legal obligations, and protects the employer from claims of inadequate response. However, documentation must balance thoroughness with sensitivity, particularly regarding victim privacy and confidentiality.

The post-investigation phase requires careful consideration of appropriate remedies and ongoing monitoring. Simply concluding that harassment occurred is insufficient; employers must take effective action to prevent recurrence and support affected employees. This might include disciplinary action, policy changes, additional training, or structural modifications to reduce future risks.

How can employers ensure their investigation processes meet legal standards while maintaining workplace relationships? The answer lies in clear procedures, trained personnel, and consistent application of policies that prioritise fairness and thorough fact-finding over expedient resolution.

Navigating the System: Employee Rights and Recourse

Internal Grievance Procedures

When facing harassment or discrimination, employees should generally begin with internal grievance procedures before pursuing external remedies. These processes provide opportunities for prompt resolution while maintaining employment relationships where possible. However, the effectiveness of internal procedures depends heavily on employer commitment to fair and thorough investigation.

Detailed record-keeping becomes crucial for employees navigating internal processes. Documentation should include dates, times, witnesses, and specific details of incidents, as well as records of any reports made to supervisors or HR departments. This evidence supports internal complaints and provides foundation for potential tribunal claims if internal processes prove inadequate.

The grievance process typically involves formal written complaints, investigation meetings, and decisions with appeal rights. Employees should understand their rights at each stage, including the right to be accompanied by a colleague or trade union representative. The process should be transparent about timelines, investigation methods, and potential outcomes.

Internal procedures cannot override legal rights or prevent employees from pursuing external remedies where appropriate. However, employment tribunals generally expect employees to attempt internal resolution before bringing claims, except in circumstances where this would be futile or inappropriate.

External Remedies and Employment Tribunals

Employment tribunal claims provide legal remedies where internal procedures fail or are inappropriate. The Equality Act 2010 permits claims for discrimination, harassment, and victimisation, while the Protection from Harassment Act 1997 enables separate civil proceedings. Each route has different procedures, time limits, and potential remedies.

Tribunal claim types include:

• Discrimination claims under Equality Act 2010
• Harassment claims under Equality Act 2010
• Victimisation claims under Equality Act 2010
• Civil proceedings under Protection from Harassment Act 1997

Tribunal proceedings evaluate claims against objective legal standards, including the "reasonable person" test for harassment and various tests for discrimination. Success depends on quality of evidence, legal representation, and thorough understanding of applicable law. The process can be lengthy and stressful, requiring significant commitment from complainants.

Recent changes to tribunal procedures and fee structures have made claims more accessible, potentially increasing the number of cases proceeding to hearing. The NDA ban might further increase tribunal activity as confidential settlements become less attractive to employers. This trend emphasises the importance of effective internal procedures and proactive prevention strategies.

Employment law harassment and discrimination claims can result in compensation for injury to feelings, financial losses, and in some cases, recommendations for organisational changes. However, monetary awards cannot fully compensate for the harm caused by harassment or discrimination, making prevention far preferable to reactive legal remedies.

Seeking Support and Legal Advice

Specialist legal advice becomes essential when internal procedures fail or where the complexity of claims requires professional guidance. Employment law solicitors can assess the strength of potential claims, advise on evidence requirements, and represent clients in tribunal proceedings. Early legal advice often proves more cost-effective than delayed intervention.

Advisory services including Acas (Advisory, Conciliation and Arbitration Service) provide free, impartial guidance on employment rights and procedures. The Equality and Human Rights Commission offers advice on discrimination law, while the Equality Advisory and Support Service (EASS) provides specialist support for equality-related issues.

Trade unions provide additional support for members facing harassment or discrimination, including legal representation and workplace advocacy. Union representatives often have expertise in employment law and experience in handling workplace disputes. For non-union members, professional associations might provide similar support within their sectors.

The emotional impact of harassment and discrimination should not be underestimated. Employee assistance programmes, counselling services, and support groups can help individuals cope with the stress of workplace conflicts while pursuing legal remedies. This support often proves crucial for maintaining wellbeing throughout lengthy legal processes.

Case Studies and Real-World Implications

The landmark case of Majrowski v Guy's and St Thomas' NHS Trust established important precedents for vicarious liability in harassment cases. The House of Lords confirmed that employers can be held responsible for employee harassment under the Protection from Harassment Act 1997, extending beyond traditional employment law remedies. This decision reinforced the principle that employers cannot ignore workplace harassment simply because it might not fall within discrimination law.

Consider a hypothetical scenario where a senior manager repeatedly makes inappropriate comments about a colleague's appearance and personal life. Under the previous system, a settlement agreement might have included broad confidentiality clauses preventing any discussion of the allegations or the employer's response. The victim would receive compensation but couldn't warn other employees or contribute to public understanding of workplace harassment issues.

Under the new transparency requirements, such a settlement could not prevent the victim from discussing the harassment allegations or the employer's handling of the complaint. This change might encourage more thorough internal investigations as employers recognise that their response will face potential public scrutiny. It might also deter similar behaviour by removing the veil of confidentiality that previously protected both perpetrators and negligent employers.

The case of Allay (UK) Ltd v Gehlen demonstrates how employment tribunals assess workplace harassment claims, particularly regarding the burden of proof and the "reasonable person" standard. The tribunal found that persistent unwanted attention, even without explicit sexual content, could constitute harassment where it created an intimidating environment. This decision highlights the importance of considering cumulative effects rather than isolated incidents.

Real-world implications extend beyond individual cases to broader workplace culture. The transparency requirements might encourage more open discussion of harassment issues, potentially reducing stigma and encouraging earlier reporting. However, they might also lead to more contested disputes as employers lose incentives for early settlement.

The new duties to prevent sexual harassment create additional complexity in case management. Employers must now demonstrate proactive prevention measures rather than simply responding to complaints after they arise. This shift requires comprehensive risk assessment, ongoing monitoring, and regular review of preventive strategies.

The Broader Impact: Workplace Culture, Reputation, and Business Risk

Harassment and discrimination create significant costs beyond legal liability, including reduced productivity, increased absenteeism, higher turnover, and damaged employer reputation. Research consistently demonstrates that inclusive workplaces outperform those with harassment problems across multiple measures including employee engagement, innovation, and financial performance.

The transparency requirements fundamentally alter risk calculations for employers. Organisations can no longer rely on confidential settlements to protect their reputations from the consequences of poor harassment prevention. This shift incentivises investment in prevention strategies and cultural change rather than reactive damage control.

Reputation management becomes more complex when harassment allegations cannot be kept confidential. Employers must prepare for potential public scrutiny of their internal processes and responses to complaints. This preparation requires robust policies, comprehensive training, and effective communication strategies that demonstrate a commitment to preventing harassment.

The business case for harassment prevention extends beyond legal compliance to encompass talent attraction and retention. Modern employees increasingly prioritise workplace culture and values when choosing employers. Organisations with strong harassment prevention reputations gain competitive advantages in recruiting and retaining high-quality staff.

"Modern employees increasingly prioritise workplace culture and values when choosing employers. Organisations with strong harassment prevention reputations gain competitive advantages." - Nick from Litigated

How do these changes affect different industries and workplace types? The impact varies significantly based on factors including workforce demographics, customer interaction levels, and existing workplace cultures. However, all employers face increased pressure to demonstrate genuine commitment to harassment prevention rather than merely managing legal risks.

Litigated: Navigating the Changing Landscape of Employment Law

Litigated provides essential guidance for legal professionals, HR managers, and business leaders navigating the complex implications of the NDA ban in harassment and discrimination cases. The platform offers comprehensive analysis of employment tribunal decisions, helping practitioners understand how courts interpret and apply harassment and discrimination law in practice.

The expert analysis available through Litigated translates complex legal developments into practical insights that inform strategic decision-making. Members gain access to detailed case studies, trend analysis, and commentary that goes beyond basic legal reporting to provide actionable intelligence for employment law harassment and discrimination cases.

Litigated's coverage of legislative changes, including the NDA ban implementation, ensures that subscribers stay ahead of compliance requirements. The platform's focus on practical application helps legal professionals advise clients effectively while enabling HR managers to develop policies and procedures that meet evolving legal standards.

The service particularly excels in helping organisations understand the broader implications of transparency requirements for their internal processes and external reputation management. By providing insights into tribunal trends, settlement strategies, and best practices, Litigated enables proactive rather than reactive approaches to harassment and discrimination prevention.

Whether you're drafting settlement agreements that comply with new transparency requirements, developing harassment prevention policies, or representing clients in employment tribunal proceedings, Litigated provides the depth of analysis and practical guidance needed to effectively navigate this changing legal landscape.

Lastly

The NDA ban represents a fundamental shift toward transparency in resolving harassment and discrimination cases. Employers must adapt their prevention strategies, investigation procedures, and settlement approaches to comply with new requirements while maintaining effective workplace relationships. Employees gain stronger rights to speak out about misconduct while retaining access to legal remedies for harassment and discrimination.

FAQs

What Specific Types of Agreements Does the NDA Ban Cover?

The ban applies to confidentiality clauses in settlement agreements that prevent victims from discussing harassment and discrimination allegations, the employer's response to complaints, or the terms of settlements. It doesn't affect legitimate confidentiality provisions protecting commercial information unrelated to the harassment claims.

Are There Any Exceptions to the Ban on NDAs in These Cases?

Limited exceptions may exist for "excepted agreements" that serve legitimate purposes beyond silencing victims. However, the legislation's primary intent is eliminating confidentiality as a tool for suppressing harassment and discrimination allegations. Any exceptions will be narrowly defined and carefully scrutinised.

How Does the New Law Affect Existing NDAs Signed Before 2025?

Existing NDAs may become unenforceable regarding harassment and discrimination allegations once the new legislation takes effect. Employers cannot rely on pre-2025 agreements to prevent disclosure of misconduct, though other confidentiality provisions might remain valid.

What Are the Potential Consequences for Employers Who Breach the New NDA Rules?

Employers attempting to enforce void confidentiality clauses may face increased legal challenges, reputational damage, and potential tribunal findings that they failed to comply with legal requirements. The transparency requirements also mean that poor handling of harassment cases will face greater public scrutiny.

How Can Employers Best Prepare for the Implementation of the NDA Ban?

Employers should review existing policies and settlement templates, enhance harassment prevention training, strengthen internal investigation procedures, and develop communication strategies that account for potential public disclosure of harassment allegations. Investment in prevention becomes more important than ever as confidential settlements become unavailable.

Nick

With a background in international business and a passion for technology, Nick aims to blend his diverse expertise to advocate for justice in employment and technology law.