NDA reform now reaches law firms in their own right, not only in the advice they give. Section 202A of the Employment Rights Act 1996 was inserted by the Employment Rights Act 2025. It voids any provision in an agreement between employer and worker that stops the worker disclosing relevant harassment or discrimination. Firms use those agreements on their own staff.
What does section 202A actually do?
The section voids the offending provision rather than the agreement. A settlement agreement containing a confidentiality clause that falls foul of it survives, minus that clause. The protection covers disclosure of the harassment or discrimination itself. It also covers disclosure about the employer’s response to it. That second limb is the wider one, and the more likely to catch existing templates.
There is a carve-out. A clause remains enforceable if it sits in what the legislation calls an excepted agreement, and the regulations defining that category are not yet made. The government consulted on them in 2026.
Two other reforms sit alongside it. Section 17 of the Victims and Prisoners Act 2024 has been in force since 1 October 2025. It voids NDAs that prevent victims or direct witnesses of crime disclosing to specified bodies for specified purposes. The government has said it will repeal that section and replace it with something broader.
What counts as an excepted agreement?
The consultation proposed conditions rather than categories. The most concrete is that a written copy of the agreement must be provided to all parties in an accessible format, as a condition of validity.
That goes further than the regulatory position solicitors already work to. The SRA’s warning notice on NDAs, updated on 6 August 2024, says solicitors should not prevent someone who has entered into an NDA from keeping or receiving a copy. The consultation turns an expectation into a validity requirement. On plain language the government proposed guidance rather than legislation, on the basis that the term is hard to define in statute.
Why NDA reform reaches firms twice over
A firm advising an employer client on settlement templates is also an employer using them. The warning notice binds the solicitor drafting either way, and it applies to all practitioners, including in-house counsel.
The SRA has been explicit about what improper use looks like. Its thematic review of NDAs in workplace complaints surveyed 150 firms providing employment services, and found most agreements legitimate while identifying common shortcomings. The notice that followed says NDAs should not be used routinely. It warns against over-reliance on precedents and templates. It also requires firms to make sure everyone dealing with NDAs has adequate training.
In its response to the government consultation, the SRA made a point that is easy to overlook. Some complainants in cases it was investigating were reluctant to speak to the regulator. They believed they would be breaching their agreement, in cases where they would not have been. Drafting that creates that impression is itself the problem, whatever the clause technically says.
Confidentiality is not the only route by which allegations are suppressed. The collapse of the Crispin Odey libel claim showed the public interest defence working at the other end of the same problem.
For in-house teams the exposure is sharper still. The SRA’s guidance for in-house solicitors deals directly with being asked to use an NDA to suppress repeated wrongdoing.
Law firms sit on both sides of this. A firm advising clients on settlement templates is also an employer using them, and the SRA warning notice applies to the solicitor drafting either way. Once the regulations land, a confidentiality clause that would have been routine may be void in part. The reputational exposure of getting it wrong is larger for a law firm than for most employers.
What should firms do before the regulations land?
Template review is the obvious step and the least useful one on its own. The clauses most likely to fail are the ones drafted for a different purpose, such as broad non-disparagement wording that catches complaints about how a grievance was handled.
Three practical points follow. Record the advice in writing, which the warning notice already expects and which protects the solicitor if the drafting is questioned later. Check that nothing in the agreement or the surrounding correspondence suggests reporting is prohibited. And treat the 30 October harassment duties as part of the same picture rather than a separate workstream, since both changes are covered in our Employment Rights Act timeline.