The future of NDA use

The top questions explored in this session were…

1. How are NDAs currently used in relation to allegations of discrimination and harassment?
2. How will the Employment Rights Bill’s introduction of a ban on the use of NDAs in these circumstances impact how businesses handle employment law disputes?
3. Is this change good or bad, and how can any negative consequences be mitigated?

These are the top three things that attendees should take away from the session:

• This legislation - along with the Worker Protection Act 2023, which has required employers to take reasonable steps to prevent sexual harassment (SH) since October 2024 - will transform the way employers must handle complaints of discrimination and harassment. With the option of settling claims with NDAs unavailable, employers will instead have to: identify and mitigate specific risks within their business, update policies and train HR, line managers and the wider workforce, conduct timely and appropriate investigations when complaints are made and take disciplinary action where appropriate.
• Be aware that the NDA ban will apply not only to sexual harassment cases, but to a much wider range of allegations of harassment and discrimination, including, for example, relatively commonplace allegations of failure to make reasonable adjustments for an employee’s physical or mental disability (e.g. neurodivergence).
• There is strong evidence that sexual misconduct is prevalent both within and outside the workplace. Instead of fearing reputational damage from an allegation, therefore, employers should ensure they have robust and appropriate processes and procedures, which they are happy to stand behind, in place.