The Committee for Academic Freedom (CAF) has responded to a Government consultation on the misuse of non-disclosure agreements (NDAs) in workplace discrimination and harassment cases, warning that academics in Scotland and Wales, where England’s statutory higher education ban on such clauses does not apply, must be permitted to seek confidential advice from specialist freedom of speech and academic freedom organisations.
Run by the Department for Business and Trade, the Make Work Pay consultation concerns the implementation of new section 202A of the Employment Rights Act 1996, inserted by Labour’s flagship Employment Rights Act 2025. The provision is intended to address growing evidence that NDAs are in some cases being misused by employers to silence workers from speaking out about harassment and discrimination, including harassment within the meaning of section 26 of the Equality Act 2010.
Once commenced, section 202A will make void any clause in an agreement between an employer and worker that prevents the worker from speaking about “relevant harassment or discrimination”, or about the employer’s response to it, unless the agreement qualifies as an “excepted agreement”. Confidentiality clauses in agreements entered into after commencement will also be captured, including non-disparagement clauses.
As a consequence, the consultation is concerned not with a total ban on all such NDAs, but with the conditions under which confidentiality clauses may still be valid, and with the “permitted disclosures” workers must still be able to make even where an “excepted agreement” exists.
In England, the Higher Education (Freedom of Speech) Act 2023 has already introduced a specific statutory ban on higher education providers entering into NDAs in relation to complaints of sexual abuse, sexual harassment, sexual misconduct, and other forms of harassment and bullying. But the position in Scotland and Wales is based on voluntary sector commitments. Universities Scotland says the sector has, since 2019, been united behind a position “never to use NDAs or ‘confidentiality clauses’ in cases of harassment”, while also acknowledging that settlement agreements may still contain confidentiality clauses. Universities Wales, meanwhile, has stated that Welsh universities do not use NDAs in cases of sexual harassment or abuse, but appears not to make the same clear statement in relation to harassment more generally.
This is where the Government’s proposed rules on “excepted agreements” and “permitted disclosures” matter, offering a chance to standardise not only when such clauses may remain valid – for example, where requested by the worker after receiving independent advice – but also which individuals and organisations should be recognised as permitted recipients of confidential disclosures.
At first glance, this may not look like an academic freedom issue concerning Article 10 rights. But in the UK context, where an academic is investigated, disciplined, dismissed or settled out of post, the legal route will often be an Employment Tribunal claim framed through the language of the Equality Act: discrimination, harassment, victimisation, or some combination of those causes of action. In that setting, protected philosophical beliefs attain legal significance under section 10 of the Act, while hostile treatment related to such beliefs may fall to be analysed as harassment under section 26.
In universities, the line between expression alleged to constitute harassment of a person with a protected characteristic under section 4 of the Act, and harassment of the person expressing a protected philosophical belief under the same statutory framework, can be exceptionally thin. It is also a line that can quickly become the subject of complaint, investigation, disciplinary action, or, in the most serious cases, an agreed exit from employment. In other words, what looks formally like a harassment case may also involve a dispute about the boundaries of lawful academic expression.
One obvious example is gender-critical belief, which the courts have recognised may be protected under section 10, and in relation to which workers may be subjected to harassment within the meaning of section 26. On campus, that is unlikely to be confined to stray remarks in the staff room. It may also arise where an academic’s work concerns women’s sex-based rights, single-sex services or gender medicine for children, and where managers, colleagues or students treat the academic as bigoted or “transphobic” because of the position taken in that work.
In such a case, the legal wrong may be harassment related to protected philosophical belief, but the academic freedom issue is far from incidental. Where the treatment complained of arises from the academic’s teaching or research, and where the matter culminates in an agreed settlement on terms that include a confidentiality clause, the agreement may silence not only an employment claim, but also an account of how a university – perhaps on the basis of legally inaccurate harassment training or a flawed and partisan investigation – handled lawful academic work on a contested question.
It is this kind of scenario in which the consultation’s proposed “permitted disclosures” become important. Even where a worker has willingly entered into a valid “excepted agreement”, the whole premise of the consultation is that they should not be prevented from speaking confidentially to certain people and organisations. One of the Government’s central questions, therefore, is not simply when confidentiality clauses should remain enforceable, but who workers should still be able to speak to despite them.
CAF’s principal concern lies with that latter question.
The Government proposes an extensive list of individuals and organisations to whom workers would be permitted to disclose information after entering into an excepted agreement, including law enforcement agencies, legal advisers, regulatory bodies, Acas, trade union representatives and close family members. But it also proposes a broader category of “victim support services”, including: “Any individual or organisation who provides a service to support victims.”
The accompanying consultation explains that this category is intended to cover organisations providing confidential and independent support related to the effects of the relevant harassment or discrimination, including health professionals, counsellors and voluntary-sector services such as Independent Sexual Violence Advisers.
The underlying logic is sound: workers subject to confidentiality clauses may need more than legal advice or a route to a regulator, just as they may also need confidential support from organisations that understand their experiences. But the resulting language is shaped by the existing support infrastructure around sexual harassment and sexual violence, which is too narrow for a consultation that also covers equality-law harassment and discrimination more broadly.
For that reason, CAF has urged the Government to expand or supplement the proposed category of “victim support services” so that it includes:
“Any individual or organisation providing confidential, independent specialist advice, casework or support in relation to the relevant harassment or discrimination, including where the matter concerns protected belief.”
We think this is necessary for several reasons.
First, academics caught up in disputes of this kind may move between several forms of advice and support as they try to work out what has happened, what sort of issue it is, and where to go next. These questions may still matter after an excepted agreement has been signed, both for personal resolution and for possible regulatory reasons. The worker may wish, for example, to understand whether the speech-related matter raises a freedom of speech or academic freedom issue for a higher education regulator. Such regulators are already included in the consultation’s proposed list of permitted disclosure recipients. But identifying the relevant regulatory route, the language in which a possible disclosure should be framed, and when legal advice is needed on the limits of the agreement, are precisely the kind of matters on which specialist organisations such as CAF may be best placed to assist.
There is a second, more practical reason. Academic careers are unusually dependent on reputation, continuity and informal professional networks. A person may need to explain why they left a university without another post lined up, why a publication pipeline stalled, or why participation in an ongoing grant-funded project suddenly ended.
The consultation itself recognises part of this problem when it asks whether workers who have entered into excepted agreements should be able to disclose information to prospective employers, noting that NDAs may affect someone’s ability to explain gaps in employment or reasons for leaving. CAF has made clear in its submission that it supports such permitted disclosures. But in academia, the problem is not simply one of permitting disclosure to the prospective employer, but how that disclosure should be shaped. A worker may need to discuss, in confidence and before making any such disclosure, what can safely be said, how to avoid breaching the agreement, and how to avoid leaving a damaging silence unexplained.
Trade unions or specialist law firms may be able to provide some of that advice, but organisations like CAF can provide specialist academic freedom support free at the point of use.
Issues of cost bring us to the third rationale: equality of access. The need for specialist advice does not end once an excepted agreement has been signed, but low-paid or precariously employed academics may struggle to obtain it.
And there are plenty of people who fall into these categories. HESA’s latest figures show that 29% of UK academic staff – 69,875 people – were employed on fixed-term contracts in 2024–25, while 43% of part-time academic staff were on fixed-term contracts. Among research-only staff, the problem is especially acute: a 2023 HEPI-commissioned study, using 2020–21 HESA data, found that 68% were employed on fixed-term contracts.
Insecure employment often coincides with limited savings and a reduced ability to pay privately for specialist advice. That is all the more reason for the permitted-disclosure regime to encompass independent specialist organisations, including those that are free at the point of use. The consultation rightly recognises that workers who have experienced sexual harassment should be able to obtain confidential support from voluntary-sector organisations. Workers who have experienced harassment connected to protected belief deserve no less.
The consultation closes on 8 July 2026. Academics, university staff and others with relevant experience can respond directly to the Government consultation here.