Changes to NDAs from 1 October 2025

There continues to be debate about the use of NDAs, particularly for employees and departing employees. Particular debate recently has focussed on the use of NDAs in the Education sector and in the entertainment industry.

Provisions of the Victims and Prisoners Act 2024 will come into force on 1 October 2024, along with Government guidance and will mean that NDAs will be unenforceable against victims of crime (or persons who reasonably believe they are a victim of crime) in relation to disclosures of information to:

• Police or other bodies which investigate or prosecute crime, for investigating or prosecuting the relevant conduct
• Qualified lawyers, for seeking legal advice about the relevant conduct
• Regulated professionals (including regulated healthcare professionals), for obtaining professional support in relation to the relevant conduct
• Victim support services, for obtaining support in relation to the relevant conduct
• Regulators, for cooperating with the regulator in relation to the relevant conduct
• To a person authorised to receive information on behalf of any of the above, for the relevant purposes mentioned above
• A victim’s close family, for the purpose of obtaining support in relation to the relevant conduct

Employers who use their own form of Settlement Agreement should ensure that the agreements they use are up to date before October 2025. The rules apply to any agreements entered into on or after that date.

The Government Guidance is also a useful reminder of other issues in relation to NDAs, including:

• From 1 August 2025, under the Higher Education (Freedom of Speech) Act 2023, registered Higher Education Providers will have a duty to ensure that they do not enter into non-disclosure agreements with students, staff, members or visiting speakers where they come forward with a complaint of sexual misconduct, abuse or harassment, or any other form of bullying or harassment. Any such non-disclosure agreements entered into from 1 August 2025 will be void
• Section 43J of the Employment Rights Act 1996 continues to invalidate any section in an agreement that attempts to prevent a worker from making a “protected disclosure” (whistleblowing). Any part of an agreement that tries to stop a worker from making a “protected disclosure” is invalid and cannot be enforced
• Under the common law, a non-disclosure agreement, irrespective of its terms, cannot validly seek to prevent a person from making disclosures to the police or appropriate regulatory or statutory bodies in relation to a criminal offence. This will continue to apply to anyone (not only employees or victims of crime) that has entered into a non-disclosure agreement before 1 October 2025