The UK government has reignited its commitment to curtailing the misuse of non-disclosure agreements (NDAs) in the higher education sector where they relate to sexual misconduct, bullying or harassment. There are also signs of the government introducing a wider ban on the use of NDAs through the Employment Rights Bill.
Key provisions under the Higher Education (Freedom of Speech) Act 2023
The announcement by the Secretary of State for Education, Bridget Phillipson MP, during a recent House of Commons debate, follows the passage of the Higher Education (Freedom of Speech) Act 2023 (the Act). This legislation includes a landmark provision prohibiting higher education providers in England from entering into NDAs related to complaints of sexual misconduct, bullying or harassment. The government decided in July 2024 to pause the Act’s implementation, amid concerns that certain provisions were potentially disproportionate and burdensome.
After consultations with stakeholders, the government has now confirmed that it will implement “key elements” of the Act, including the NDA ban. This policy aims to protect victims from being silenced and to promote a culture of accountability in higher education institutions. Ms Phillipson indicated the government will publish a policy paper detailing its revised approach to the Act, but she did not provide a timeline for doing so or for bringing the NDA ban into force.
Broader plans for NDAs across sectors
The forthcoming changes in the higher education sector align with a broader trend to limit the use of NDAs in cases involving harassment. A Liberal Democrat amendment to the Employment Rights Bill sought to extend these restrictions beyond higher education, aiming to prevent NDAs from being used to cover up allegations of workplace harassment across all sectors. Whilst the government has rejected this proposed amendment, it indicated it would look at “more workable” proposals for introducing such a ban.
The misuse of NDAs to silence victims has been a contentious issue for years, with critics arguing that such agreements perpetuate a culture of secrecy and enable repeat offences. Advocates for change point out that while NDAs may have legitimate applications, such as protecting trade secrets or confidential business information, they should not be used to suppress legitimate complaints of harmful behaviour.
The path forward
This renewed focus on limiting NDAs is a welcome development for many. Students, staff and advocacy groups have long called for action to ensure that educational institutions prioritise safety, fairness and openness. The prohibition of NDAs in cases of sexual misconduct, bullying and harassment sends a clear message that higher education institutions must not hide such behaviour behind legal agreements.
Stakeholders across the higher education sector will undoubtedly follow these developments closely and await the government’s policy paper and details of the revised implementation timeline with interest. We will continue to monitor the progress of the Employment Rights Bill in relation to a possible wider ban on the use of NDAs in the context of workplace harassment.
