The Victims and Prisoners Act 2024 (the Act) comes into force on 1 October 2025 and will affect confidentiality agreements or non-disclosure agreements (NDAs) signed on or after that date. The Act provides safeguards for individuals by permitting victims of crime to disclose what has happened to certain individuals or bodies. This change should prompt employers to review the wording of any NDA provisions within English settlement agreements or employment contracts to ensure compliance with the Act.
This is not the only upcoming change to NDAs. An amendment in July 2025 to the much-debated Employment Rights Bill (ERB) confirms that the government intends to ban NDAs in discrimination and harassment cases, although we have yet to see the full picture and no date has been given for implementation. In this Law-Now we discuss the imminent changes to NDAs in the Act and the future changes to NDAs if a ban in discrimination and harassment cases is introduced.
What does the new Act say?
In summary, section 17 of the Act which applies in England and Wales (but not Scotland) sets out certain ‘permitted disclosures’ which can be made by someone who is a victim of a crime or who reasonably believes they are a victim of a crime. After 1 October 2025 an NDA clause will be legally unenforceable to the extent that it seeks to prevent such disclosures.
The permitted disclosures under the Act include any disclosure about “relevant conduct” which is made by a victim or a person who reasonably believes they are a victim of a crime, and which is made:
- to any person who has law enforcement functions, for the purpose of those functions being exercised in relation to relevant conduct;
- to a qualified lawyer, for the purpose of seeking legal advice about relevant conduct;
- to any individual who is entitled to practise a regulated profession, for the purpose of obtaining professional support in relation to relevant conduct;
- to any individual who provides a service to support victims, for the purpose of obtaining support from that service in relation to relevant conduct;
- to a regulator of a regulated profession for the purpose of co-operating with the regulator in relation to relevant conduct;
- to a person who is authorised to receive information on behalf of a person mentioned in paragraph (a), (b), (c), (d) or (e), for the purpose mentioned in that paragraph;
- to a child, parent or partner of the person making the disclosure, for the purpose of obtaining support in relation to relevant conduct.
For these purposes, a disclosure about “relevant conduct” means a disclosure about criminal conduct that makes the person a victim of a crime.
The MOJ has published guidance which provides further information on the new measure, including how someone will be defined as a victim of a crime. The guidance is a useful starting point in the event that there is any doubt over whether or not a particular type of disclosure is caught by the provisions of the Act. The guidance also explains that NDAs signed before 1 October 2025 are subject to the previous rules and might still be enforceable in certain situations.
Importantly, a disclosure is expressly not caught if it is made for the primary purpose of releasing the information into the public domain. The MOJ guidance gives the example that the new provisions would not cover the situation where a person disclosed information to a lawyer with the intention that the lawyer will then act as a spokesperson to publicise the information.
What does this mean for employers?
Given the lengthy list of carve-outs employers should already be including in an NDA in a settlement agreement to comply with statutory requirements and the regulatory position from the Solicitors Regulatory Authority (SRA), compliance with the Act is likely to entail a relatively small drafting change to internal templates. An NDA already cannot be used to prevent someone from whistleblowing or from reporting criminal conduct and these carve outs are routinely listed in NDAs.
However, there may be small differences between the list of permitted disclosures in section 17 of the Act and the carve outs in an existing NDA. For example, the wording in a template may not go as far as covering any individual who provides support to victims or the child or parent of the individual.
We recommend that businesses take advice on the wording of their NDA provision in their settlement agreement or other applicable templates such as employment contracts.
Regulation of NDAs
Solicitors who are regulated by the SRA (including in-house lawyers) should be aware of the SRA warning notice concerning the use of NDAs. In summary, the warning notice sets out a reminder to solicitors of the ways in which their regulatory obligations interact with the use of NDAs, whether they are negotiating, drafting, advising on or enforcing the NDA. The primary purpose of the warning notice is to ensure that NDAs are not used to prevent reports from being made to the SRA, other regulators, or law enforcement agencies, or to prevent a person from making a disclosure which is protected by law.
The warning notice specifically provides that NDAs must not include or propose clauses which are known to be unenforceable. This means that, for those regulated by the SRA and involved in drafting NDAs, it is particularly important to make sure that confidentiality agreements only include provisions which are enforceable under the current state of the law. In effect this means it is not appropriate to consider retaining unenforceable confidentiality obligations for their deterrent effect.
Future change - ban on NDAs in discrimination and harassment claims
In July 2025 the government tabled an amendment to the Employment Rights Bill which, if implemented in its current form, will ban confidentiality clauses between workers and employers which prevent the worker from making an allegation or disclosure relating to harassment or discrimination, or an allegation or disclosure concerning the employer’s response to discrimination/harassment or to an allegation made about discrimination or harassment.
Importantly, the current draft of the ERB states that this ban will not apply to certain “excepted agreements”. However, the list of exceptions has not yet been defined, which means that the impact of this new provision will very much depend on how widely or narrowly those exceptions are drawn.
The implementation date for this change is not yet known. The intention of the provision is, in effect, to prevent employers from covering up workplace wrongdoing though the use of NDAs. The government press release states that the ban will prevent workers from suffering in silence.
What will the potential ban on NDAs in discrimination and harassment cases mean for employers?
Without the incentive of confidentiality to enter into a settlement agreement, we expect that more employment litigation will be started, and more claims will proceed to a final hearing. At the moment the vast majority of issued claims settle: in the first quarter of 2025, 77% of Employment Tribunal claims were resolved without a final hearing (ACAS).
A further consequence for employers is the impact on transparency. With a less clear route to settlement (and any settlement terms excluding confidentiality over discrimination and harassment allegations), employers will face greater public scrutiny of how they have handled these types of allegations and of their workplace investigation process.
Employers will want to make sure allegations are investigated thoroughly and transparently in order to allow them to make a decision they can confidently stand behind. Reporting procedures should be effective, and staff should be appropriately trained on carrying out complex investigations.
The potential ban on NDAs in this context should also be viewed alongside the duty on employers to prevent sexual harassment and the overall focus on prevention rather than cure. The aim with both changes is to enhance workplace culture and focus on driving the appropriate behaviour within the working environment.
If you would like to discuss the above further, please reach out to your usual CMS Employment team contact or the authors named above.
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