The Price of Silence: Section 202A and the Architecture of the Excepted Agreement

Zelda Perkins was twenty-four when she signed a non-disclosure agreement with Miramax in 1998. She was the first person to break one publicly in connection with Harvey Weinstein, and she has spent the better part of two decades arguing that the legal architecture which made that agreement possible was rotten from the foundations. On 15 April 2026, the government published a consultation that suggests it may finally agree with her.

The consultation, Make Work Pay: Non-disclosure agreements (NDAs), is the regulatory scaffolding for section 202A of the Employment Rights Act 1996, inserted by section 24 of the Employment Rights Act 2025. The provision received Royal Assent in December 2025 but is not yet in force. When it is, the landscape for settlement practitioners will change fundamentally.

The Default Void

Section 202A operates with the bluntness of a statutory sledgehammer. Any provision in any agreement between an employer and a worker is void insofar as it purports to prevent the worker from making an allegation of, or disclosing information relating to, relevant harassment or discrimination. That includes both the underlying conduct and the employer's response to it. The void applies whether the agreement is a contract of employment, a settlement agreement, a COT3, or any other form of contractual arrangement.

"Relevant harassment or discrimination" covers the full taxonomy of the Equality Act 2010: direct and indirect discrimination, disability discrimination, harassment, victimisation. The perpetrator may be the employer or a fellow worker. The victim need not be the worker who signed the agreement—it extends to fellow workers too.

This is not a modest reform. It is a default rule that renders void the confidentiality provisions in the vast majority of settlement agreements resolving discrimination and harassment claims. Every practitioner who has drafted a standard-form settlement agreement with a confidentiality clause—which is to say, every employment practitioner—needs to understand what comes next.

The Excepted Agreement: Buying Back Silence (With Conditions)

Section 202A includes a carve-out. An agreement may survive the void if it qualifies as an "excepted agreement"—one that meets conditions to be prescribed in regulations. The April 2026 consultation is the government's invitation to practitioners, employers, unions, and campaigners to shape those conditions.

The proposed requirements for an excepted agreement are these:

1. Independent advice. The worker must have received independent written advice on the terms, effect, and legal limitations of the NDA provisions before entering into the agreement. The adviser must be named in the agreement and covered by professional indemnity insurance. This mirrors the existing settlement agreement framework under section 203 ERA 1996, but with an important difference: the advice must specifically address the NDA provisions, not merely the waiver of tribunal claims.

2. Written worker preference. The worker must have expressed, in writing, their preference to enter into the excepted agreement. The consultation floats two approaches on whether the employer should be permitted to suggest confidentiality in the first place. Approach 1 would prohibit the employer from initiating the conversation; Approach 2 would require the worker to state that their preference was genuine and not the result of employer influence. The tension is real. Most settlement negotiations begin with the employer's solicitor sending a draft agreement with a confidentiality clause already baked in. Banning that would rewrite the choreography of every settlement negotiation in the country.

3. A 14-day cooling-off period. The excepted agreement must include an explicit right for the worker to withdraw without penalty within 14 calendar days. This is borrowed from consumer law and the recent Irish NDA legislation. The consultation acknowledges that it may wreak havoc on door-of-the-tribunal settlements—and it is worth pausing on just how much havoc.

4. Written copy and plain language. All parties must receive a written copy in an accessible format. The consultation also asks whether excepted agreements should be required to be written in plain language—a proposal that would give employment tribunals the novel jurisdiction of policing prose style.

5. No prospective silencing. The agreement can only cover harassment or discrimination that has already occurred or is alleged to have already occurred. Pre-dispute NDAs in employment contracts—the boilerplate confidentiality clauses inserted at the point of hire—would be void and incapable of qualifying as excepted agreements.

The Cooling-Off Problem

The 14-day cooling-off period deserves particular scrutiny, because it cuts across the temporal mechanics of tribunal litigation in ways the consultation document only partially acknowledges.

A Birketts LLP survey found that 62% of employment tribunal claims settle before the final hearing, with 24% settling the day before. Anyone who has practised in the employment tribunal will recognise the pattern: the settlement is agreed at 4pm on Friday, the hearing is listed for Monday, and both parties need certainty that the matter is concluded. A 14-day cooling-off period means that a worker who settles on Friday could withdraw the following Thursday—by which point the tribunal listing may have been vacated, the judge released, and the hearing date lost for 12 months.

The consultation acknowledges the interaction with limitation periods. When a worker notifies Acas under the early conciliation provisions, tribunal time limits are paused for up to 12 weeks under section 207B ERA 1996. If a cooling-off withdrawal occurs during that period, calculating the remaining limitation is an exercise in overlapping pauses that will generate satellite litigation of its own.

The consultation asks whether workers should be permitted to waive the cooling-off period, and whether it should be shortened to 7 or 10 days. I say this as someone who regularly advises on both sides: the waiver option is essential if the cooling-off period is not to become a structural barrier to settlement. The Acas Code of Practice already recommends 10 days to consider a settlement offer. Mandating a further 14-day withdrawal window on top of the consideration period risks making late-stage settlement practically impossible in cases involving any element of discrimination or harassment—which is to say, a substantial proportion of the tribunal's caseload.

Permitted Disclosures: The Walls of the Agreement Get Thinner

Even where a valid excepted agreement exists, section 202A contemplates a list of "permitted disclosures"—individuals and bodies to whom the worker may speak despite having agreed to confidentiality. The consultation proposes a strikingly wide list:

• Law enforcement bodies (police, HSE, FCA, ICO, SFO)
• Qualified lawyers and registered foreign lawyers
• Regulated professionals and tax advisers (doctors, social workers, paramedics)
• Victim support services (including ISVAs and counsellors)
• Regulatory bodies (SRA, GMC, EHRC)
• Acas officers
• Trade union representatives (including equality representatives and those authorised to advise on settlement)
• Persons authorised to receive information on behalf of any of the above
• Close family members (spouse, parent, child, sibling, grandparent, aunt, uncle)

This list is modelled on the Victims and Prisoners Act 2024, section 17 of which—in force since 1 October 2025—already voids NDA provisions that prevent victims of criminal conduct from making similar disclosures. The employment consultation extends the same architecture to discrimination and harassment, regardless of whether criminal conduct is involved.

Notably, the government proposes that friends should not be included as permitted recipients, reasoning that the concept is too amorphous and would undermine an employer's willingness to enter into excepted agreements at all. But the parties may agree to name specific friends in the agreement itself. The result is a curious drafting exercise: a confidentiality clause that must enumerate the worker's approved confidants by name.

The consultation also asks whether prospective employers should be on the permitted list. The rationale is sympathetic—NDAs can prevent workers from explaining gaps in their employment history—but the practical consequence is alarming. A future employer, not bound by the excepted agreement, would owe no duty of confidence to the previous employer. The consultation concedes this could make employers "less inclined to enter into an excepted agreement," which rather understates the point.

Time Limits on Confidentiality

One of the more radical proposals asks whether confidentiality obligations should be time-limited. The consultation draws on Canadian precedent—Ontario and Prince Edward Island require NDAs to be "of a set and limited duration"—and the Irish model, which mandates that excepted agreements be "of unlimited duration, other than where the employee elects otherwise." The options canvassed range from 1 year to 10 years, with a possible maximum cap of 3 years.

This would represent a fundamental departure from current practice. Confidentiality clauses in settlement agreements are almost universally drafted as perpetual obligations, and for good reason: the employer's interest in preventing disclosure does not diminish with time, and the worker's financial consideration reflects a permanent commitment. Inserting a sunset clause recalibrates the economics of every settlement negotiation. If the employer knows that the worker will be free to speak in three years, the settlement sum will reflect that reduced value of silence.

Beyond the Worker: Scope and Status

Section 202A applies to "workers" within the meaning of section 230(3) ERA 1996—employees and limb (b) workers. The consultation asks whether it should extend further, to agency workers, secondees, work experience placements, student nurses, NHS contractors, and certain categories of self-employed individuals.

The self-employed question is the most consequential. The Women and Equalities Select Committee's Misogyny in Music report (2024) highlighted that "abuse and discrimination are not unique to the industry but they are amplified by the high number of freelance workers in the sector—which gives rise to significant power imbalances in working relationships." Extending section 202A to the genuinely self-employed would require Parliament to define the boundaries of a new category of protected relationship that sits outside the traditional employment law framework. The consultation wisely suggests a "staggered approach"—commencing with section 230(3) workers and extending later—but the direction of travel is clear.

The Regulatory Landscape

Section 202A does not arrive in a vacuum. The statutory framework for NDA regulation has been thickening for several years:

• Section 43J ERA 1996 (in force since 1999): any NDA provision is void insofar as it prevents a protected disclosure. From 6 April 2026, sexual harassment is explicitly added to the list of "relevant failures" that qualify for whistleblowing protection.
• Section 17, Victims and Prisoners Act 2024 (in force from 1 October 2025): NDAs cannot prevent victims of criminal conduct from disclosing to police, lawyers, regulators, support services, or close family. Extended from 12 December 2025 to cover CICA claims and court proceedings.
• Higher Education (Freedom of Speech) Act 2023 (from 1 August 2025): NDA ban in relation to sexual abuse, harassment, misconduct, or bullying involving HE staff, students, and visitors.
• SRA Warning Notice (updated August 2024): solicitors face disciplinary action for misusing NDAs or inserting clauses that discourage (not just prevent) reporting. The SRA's 2023 Thematic Review found that 84% of firms used generic NDA templates and only 6 out of 25 firms reviewed ever questioned whether an NDA was appropriate.

The cumulative effect is a legislative architecture in which the general rule is that silence cannot be purchased—and the exceptions must be earned. ABC v Telegraph Media Group Ltd KB → [2018] EWCA Civ 2329, in which the Court of Appeal upheld NDAs as serving "an important and legitimate role in the consensual settlement of disputes," now reads as a statement of the old orthodoxy. The new orthodoxy, once section 202A is commenced, will be that NDAs are presumptively void and must justify their existence through regulatory compliance.

What Practitioners Should Do Now

The consultation closes on 8 July 2026. Implementation is expected in late 2026 or early 2027. Practitioners should:

• Audit standard-form settlement agreements. Any template with a blanket confidentiality clause covering discrimination or harassment allegations will need to be restructured to meet the excepted agreement conditions once regulations are in force.
• Advise clients on the transitional position. Section 202A is not retrospective—existing agreements are unaffected. But any agreement concluded after commencement will need to comply.
• Consider the interaction with COT3 agreements. The consultation applies the excepted agreement framework to COT3s as well as private settlements. The independent advice requirement is a particular challenge here, since COT3s have traditionally not required legal advice. Whether Acas conciliators should count as "independent advisers" is one of the consultation's open questions.
• Think about the commercial implications of time-limited confidentiality. If regulations impose a maximum duration, the economics of settlement negotiations will shift. Employers will need to price the eventual disclosure into their offers; claimants' advisers will need to explain that the premium for silence may be lower if it comes with an expiry date.
• Respond to the consultation. This is a genuine consultation with open questions on nearly every substantive point. Practitioners who settle employment claims—and that is most of us—have a direct stake in how the regulations are drafted.

The framework can see the problem clearly enough. Whether it has built the right machinery to solve it—without making late-stage settlement functionally impossible in discrimination cases—is the question the consultation leaves open.

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