Employment Rights Act 2025 and NDAs: What Changes for UK Employers

The Employment Rights Act 2025 introduces significant changes to how NDAs operate in the employment context. Most headline commentary has focused on the Act's day-one unfair-dismissal rights and zero-hours contract reforms, but section 202A — the void-NDA provision — has direct implications for any employer using confidentiality or non-disparagement clauses in employment contracts and settlement agreements.

What section 202A does

Section 202A makes void any contractual term that purports to prevent an employee or worker from disclosing information about relevant conduct. The statutory language is deliberately wide: 'relevant conduct' is defined to include harassment, bullying, and discrimination — whether under the Equality Act 2010 or otherwise.

The effect is that a clause reading 'you shall not make any disparaging remarks about [employer]' will be unenforceable to the extent it covers the employee's experience of harassment or discrimination. It does not matter that the clause is described as a standard confidentiality obligation rather than a gag on misconduct claims.

What the new law does NOT change

• Commercial confidentiality survives. Trade secrets, client lists, pricing models, product roadmaps, IP, and financial data are entirely outside s.202A's scope.
• Whistleblowing carve-outs already exist. PIDA 1998 already voids any NDA clause purporting to block a protected disclosure. S.202A extends protection into the harassment/discrimination space that PIDA did not cover.
• Settlement agreements and COT3s. These are a distinct regime but the same principle applies: a settlement agreement cannot contain clauses that would be void under s.202A.
• Non-competes and non-solicitation. Post-termination restrictive covenants are not affected — they are governed by restraint-of-trade principles (Tillman v Egon Zehnder [2019] UKSC 32), not s.202A.

When does it come into force?

As of June 2026 the Employment Rights Act 2025 has received Royal Assent but the commencement regulations for s.202A have not been published. Government indicative guidance points to late 2026 or Q1 2027, though this may slip.

Employers and HR teams should not wait for the commencement date to act. Agreements signed before commencement will still be caught retrospectively once the section is in force — the wording does not protect existing agreements.

What HR teams should do now

1. Audit existing employment NDAs and settlement agreements for broad non-disparagement clauses.
2. Separate trade-secret protection from behavioural/conduct clauses — they serve different functions and should not be bundled into a single blanket obligation.
3. Ensure any new employee NDA includes a statutory carve-out for harassment and discrimination reporting alongside the existing PIDA carve-out.
4. Seek independent legal advice before using an NDA in connection with any harassment, bullying or discrimination complaint.
5. Check your template is kept current: NDASafe updates its Employee NDA as final commencement regulations are published.

Does this affect freelancer or contractor NDAs?

Section 202A applies to 'employees or workers' — a term that captures both employees and the broader category of dependent contractors who have worker status. A genuinely self-employed contractor operating through their own company and with full substitution rights is unlikely to be within scope.

However, IR35 and worker-status assessments are notoriously fact-specific, and many contractors occupy a middle ground. Where there is any realistic prospect that an individual has worker status — particularly if they are a long-term regular engagee without their own workforce — take independent legal advice before including broad non-disparagement language in the NDA.