Does banning Non -Disclosure Agreements (NDA) spell the end of unchallenged workplace misconduct?

In this guest blogpost, former Locked Up Living guest and leading researcher into non-disclosure agreements (NDAs) and their impact on victims of workplace harassment, Dr Victoria Pagan, explores the background to NDAs and flags up what the future may hold. Is the end of NDAs in the UK really the start of ‘moving on’ or is the whole issue rather more complex?

Our workplaces can be dangerous for a number of reasons. Beyond physical risk from manual forms of labour, they may be sites of severe trauma from experiences of sexual harassment, discrimination, bullying, and other physical and epistemic violences. For example, the Speak Out Revolution (2025) has found gaslighting and microaggressions as the most prevalent harassing and bullying behaviours experienced by 73% and 68% of their respondents. They have also found discrimination on the grounds of sex as experienced by 47% of their respondents and 46% have experienced sexual harassment behaviours including comments, leering, and touching. Furthermore, 41% report having their experiences silenced via what are often referred to as non-disclosure agreements (NDAs). The use of such legal processes has been increasingly reported in recent years as being used to deliberately conceal bullying, harassment and discrimination within a range of public and private sector organizations. Formally known as confidentiality clauses and/or settlement agreements, these legally negotiated contracts have been used in morally and ethically complex incidents of misconduct including sexual harassment. Their purpose in these cases is to prevent the experiences being spoken about, which in turn prevents any tracking of persistent behaviours or accountability for the perpetrator. The misuse of NDAs in these ways prompted the UK Solicitors Regulation Authority to produce two Warning Notices, one in 2018 and another in 2024 to counsel against such application. In 2019, a UK Government Women and Equalities Committee Inquiry into the use of non-disclosure agreements (NDAs) in discrimination cases made a number of recommendations and, additionally, there has impactful organizing to raise awareness and campaign on behalf of survivors for improved legal restrictions of their use in a range of countries, for example, Can’t Buy My Silence, Lift Our Voices, and #NDAFree. In July this year, the UK Government committed to amend the Employment Rights Act to ban employers from using them to silence those who have experienced workplace harassment or discrimination.

I have been researching the use of NDAs in workplaces for the last 5 years and my interest is in further understanding the practices and impacts of their use. I have been struck by comments from both representatives of employers and from victim-survivors that foreground the importance of ‘moving on’ and/or ‘moving forward’ from what are often harrowing and traumatic experiences. In the oral and written evidence given to the Inquiry, for example, I have seen a desire for victim-survivors to navigate ways to restore and/or recover that are described as ‘moving on’ or ‘moving forward’ in their lives and careers. This is often echoed by comments from those within the organizations such as human resources professionals, line managers, and/or legal advisors who also encourage such ‘moving on’ as beneficial in terms of progress and growth for both the (often former) employee and the continuing operation of the workplace. I have seen NDAs being used to facilitate such ‘moving on’ – signing them can be presented positively by representatives of the workplace to the employee as a way to enable them to achieve financial compensation and a clean break for their career. This can be perceived positively by employees as well, as a way to ensure financial stability and put the experience behind them. However, this can be problematic. For example, Kiran Daurka, Discrimination Law Association and Partner, Leigh Day commented, I do think that there has been an increasing chilling effect on women being able to speak out. However, I also see the huge benefit because it allows my clients to settle their cases and move on in a way that I do not think they would be able to without a confidentiality agreement in place. In this respect, I have concerns that sometimes the benefits associated with making progress, putting things behind us, may deflect attention from necessary accountability for the violations and risk the continuation of damaging behaviours within organisations. Progress for the organisation may move the complainant on under the guise of progress for them (for example, good references, better career prospects, a new start). They would be foolish not to ‘move on’ and if they don’t, they may be blamed for not doing so. There may be a shift of responsibility to the victim-survivor such that if they don’t move on, they are failing and can be blamed for not taking the opportunity. It may also be deeply normalised for the victim-survivor, where what comes ‘next’ in a linear future format must be ‘better’ compared with ‘now’ - why would I not want to take advantage of this? I want to get on with my life.

So now that NDAs are to be banned from use in these circumstances in the UK, as well as legislative changes in other countries, what might this mean for progress in relation to workplace misconduct? It takes away a set of processes and practices that, for some, have felt beneficial but for others, have felt additionally controlling and compounding the initial trauma. I do wonder what the new ban will mean for those who have signed them in the past – how will they feel? Will there be any implications to render the agreements null and void? As for the present into the future, I wonder how the new law will be enforced – will employers use other legal tools, for example, attempts to silence through defamation law? Overall, I hope that ‘moving on’ means more of a focus on prevention of misconduct behaviours in the first place, with learning, restoration, and equanimity foregrounded.

Victoria is a Senior Lecturer in Strategic Management at Newcastle University and she researches how knowledge is used and violated alongside morality and ethics. She explores tensions between secrecy and transparency.

You can read the transcript of the Locked Up Living podcast conversation here.