ERA confidentiality changes: the new restrictions and proposed exceptions

Earlier this month, the Government published a consultation on the restrictions on non-disclosure agreements being brought in by the Employment Rights Act (“ERA”). Once in force, the changes will significantly affect how employers can use confidentiality clauses, particularly in settlement agreements. The restrictions are expected to take effect in 2027.

What are the enhanced restrictions?

The new restrictions will prohibit employers using confidentiality clauses to prevent an individual speaking about:

• actual or alleged workplace discrimination or harassment; and
• the employer’s response to discrimination or harassment. Any clause seeking to restrict disclosures in these circumstances would be void. 

Are there any exceptions?

Yes. The restrictions will not apply where the confidentiality provisions are included in an “excepted agreement”.

While the ERA does not define this, the consultation proposes that an agreement would only be “excepted” if a list of specified conditions are met. They include:

• the employee receiving independent written advice on the terms, scope and limits of the confidentiality provisions;
• after receiving that advice, the employee providing an informed “expression of preference” to enter into the agreement;
• a 14 day cooling off period allowing the employee to withdraw from the entire agreement without penalty; and
• other requirements (e.g. the agreement must be written and accessible; confidentiality clauses must be time limited; and clauses should cover past incidents only, not future acts).

The consultation seeks views, among other points, on whether employers should fund the written advice, whether employers should be prevented from suggesting confidentiality or requesting an employee sign an excepted agreement, and on suggested alternatives to the cooling off period.

Even where an agreement is “excepted”, individuals would still be able to make disclosures to prescribed persons (e.g., law enforcement, victim services and regulators). The Government is also considering extending the classes of people to whom disclosures are allowed - to prospective employers, wider family and friends.

Possible future extensions

The consultation also seeks views on whether the new restrictions should be extended further to agreements with:

• agency workers;
• individuals on work experience or secondment;
• nurses and midwives in training; and
• certain self employed individuals.

If adopted, any extension would take effect at a later date.

Next steps

The consultation closes on 8 July 2026. Depending on the final regulations, the proposals could significantly shape how employers can use confidentiality provisions during employment and during a settlement process. We expect the Government’s response to the consultation to be published later this year.

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