The ERB NDA amendments address a number of longstanding concerns regarding alleged covering up of sexual harassment cases and other forms of unlawful discrimination. Complementary reforms have already been enacted in other sectors, including forthcoming bans on NDAs in universities and bans on NDAs which prevent disclosures by those who have been a victim of criminal conduct.

If enacted, the changes will mark a significant reform to confidentiality law. However, the true impact depends on how “excepted agreements” are defined, how gaps in scope are addressed, and the timing of implementation.  As a result of these changes, employers may become less willing to settle claims of discrimination and harassment if settlement doesn’t mean that matters are definitively drawn to a close and if the employee remains free to continue raising their claims publicly, with the inherent reputational risk to the employer.  This is turn may lead to greater numbers of Employment Tribunal claims on top of the increase that is already likely from the wider changes in the Employment Rights Bill.