An Assessment of Potential Changes from the "Make Work Pay" Consultation: Tackling the Misuse of NDAs

The Government’s ongoing consultation, "Make Work Pay: misuse of non-disclosure agreements (NDAs)," which launched on 15 April and runs until 8 July 2026, explores introducing strict new regulations to prevent employers from using confidentiality clauses to cover up workplace harassment, abuse, and discrimination. 

This pivotal move follows years of dedicated campaigning by Zelda Perkins and the Can’t Buy My Silence campaign, alongside driving research from the Young Women’s Trust indicating that one in four young women would be reluctant to report such behaviour for fear of losing their jobs.

Levelling the Playing Field and Shifting Power Dynamics

While employment laws technically apply universally, women and vulnerable workers frequently suffer a disproportionate negative impact from workplace misconduct. Campaigners contend that the historical misuse of NDAs contributes heavily to structural inequality, silencing individuals who lack the financial resources to legally challenge well-funded employers. Critics argue that these agreements have frequently functioned as mechanisms to enforce power imbalances rather than serving as neutral legal tools.

The revisions currently under consideration aim to considerably assist with levelling the playing field, inviting individuals to make their voices heard without fear of professional or legal consequences.

While this specific initiative focuses strictly on the misuse of NDAs, the Government has indicated that the broader evaluation of the UK's whistleblowing framework will not be combined with this text, but will instead be addressed via a separate, dedicated consultation slated for later this summer.

Proposed Changes and the "Excepted Agreements" Framework

The proposals arising from this consultation represent a major shift in employment relations, potentially restricting the use of NDAs to highly limited, specific circumstances.

A common misconception is that requiring independent legal advice is a new proposal; in reality, receiving independent legal advice is already a statutory requirement for any settlement agreement to be legally binding. Instead, the consultation introduces a novel framework for "excepted agreements." Under these proposed rules:

• Express Written Preference: An NDA can only be enforced if the worker explicitly states their preference and consent for a confidentiality clause in writing after receiving independent legal advice.
• Cooling-Off Period: The proposals consider introducing a mandatory 14-day, penalty-free cooling-off period, ensuring the agreement is genuinely voluntary and not signed under immediate financial or emotional duress.
• Permitted Disclosures: Workers will retain an absolute right to speak about their experiences with specific individuals and bodies. This includes legal professionals, medical practitioners, police officers, qualified therapists, and regulatory bodies. This completely removes the fear of legal retaliation that previously stopped victims from seeking vital emotional or professional support.

The Employment Tribunal Perspective

Viewing these changes from an Employment Tribunal perspective provides a complex overview of the potential systemic fallout.

Initially, Tribunals may experience an altered caseload, potentially leading to longer waiting times and more contested hearings as hidden workplace disputes finally come to light. However, the wider legal landscape must be considered. Under the broader reforms of the Employment Rights Act 2025, which removes compensation caps and shortens qualifying periods for ordinary unfair dismissal, employees will have far less tactical incentive to artificially frame baseline disputes as complex discrimination or whistleblowing claims simply to bypass compensation or timescale limits. Consequently, while discrimination and harassment claims may see a clearer path to the public domain, overall tactical litigation may balance out.

Knock-On Effects for the Workplace

Despite the shifting pressures on the Tribunal system, the broader culture shift within workplaces is expected to be profound. Anticipated workplace impacts include:

• Proactive Investigations: Employers addressing and investigating complaints much sooner, conducting rigorous inquiries at an early stage rather than relying on a payout to quiet the issue.
• Early Resolutions: A stronger cultural push for genuine negotiated resolutions and workplace mediation before matters escalate to litigation.
• Statutory Compliance: Improved, systemic compliance with the Equality Act 2010.
• Cultural Safety: Colleagues feeling safe to support victims' complaints, effectively shortening the time required to reach internal resolutions.
• Public Accountability: As more cases enter the public domain, transparency will make it significantly easier to identify repeat offenders, whether they are individual perpetrators or corporate entities.

Maintaining Compliance and Mitigating Risk

Both employers and employees must strictly adhere to evolving employment laws. Turning a blind eye to unacceptable behaviour places businesses in a highly vulnerable position. Ignoring systemic issues can prove incredibly costly from both a reputational and financial perspective, especially as standard confidentiality protections dissolve.

To protect both the business and its staff, organisations will need to carefully consider boilerplate settlement templates and conduct a review, as well as implementing an annual review of workplace procedures, ensuring absolute alignment with the impending "Make Work Pay" legislative standards.

Our lawyers at Giambrone & Partners LLP can assist with a wide range of contentious and non-contentious employment law matters, advising both businesses and individuals on workplace disputes, settlement agreements, and the use of non-disclosure agreements.

For further information on how we can assist you in navigating your legal rights and obligations in relation to these issues, contact us.