Margot Harvey, Senior Legal Analyst
Margot, formerly our Head UK Legal Analyst, is now studying for the Master of Laws (LLM) Solicitor’s Practice Programme at City University of London, aiming to qualify as a solicitor in England & Wales later this year. She focuses on employment, higher education and sexual abuse cases in the UK team.
On 15 January 2025, the Government announced the reinstatement of the Higher Education (Freedom of Speech) Act, which includes an amendment banning the use of non-disclosure agreements (NDAs) to silence complaints about misconduct within higher education.
NDAs are legal binding contracts which prevent the parties from sharing specific information with others. Though NDAs originally arose to protect confidential trade secrets, they have become widespread in cases involving sexual abuse, harassment and bullying, and are often a pre-condition for settlement and financial compensation.
Mandatory use of NDAs can come at a great cost to victims and survivors who may feel they have no choice but to sign away their rights to reach a settlement. Meanwhile, those responsible for harming them are permitted to progress in their careers or, as #MeToo revealed, go on to harm others. Institutions tend to favour NDAs as they limit the public disclosure of information which might harm their reputations. However, by concealing the extent to which misconduct is occurring within their walls, these same NDAs can ultimately prevent institutions from meaningfully reflecting on their mistakes and making positive changes to address them.
The Government’s announcement follows a 2023 statement by the Law Society urging the Government to commit to limiting the misuse of NDAs in settling issues around workplace harassment and/or discrimination. In a September 2023 parliamentary debate, MP Maria Miller shared that women are six times more likely than men to be asked to sign an NDA, while Black women are three times more likely to be asked to sign an NDA compared to white women. She also noted that people with disabilities sign NDAs at 40 times the rate of those without disabilities. In February 2024, the Legal Services Board published their findings on the misuse of NDAs, highlighting “a potential overuse and misuse of NDAs, where the intention is to cover up misconduct, intimidate or silence people”.
The amendment of the Higher Education (Freedom of Speech) Act will make it illegal for publicly funded universities to use NDAs to cover up sexual misconduct, harassment or bullying. The Bill’s progress was paused for review last year but fortunately has been reinstated in recent months. Once it comes into force, the amendment will mean a complete ban on the use of non-disclosure agreements to silence victims of bullying, harassment or sexual misconduct on campuses.
While limited to higher education, this statutory change sends a powerful message to other sectors. It is clear that the use of NDAs to cover up harassment, bullying and sexual misconduct is being met with resistance, at the highest level. It is hoped that the Government will extend similar legal protections to the upcoming Employment Rights Bill.
McAllister Olivarius has had long experience of drafting fair, balanced and reasonable NDAs in cases where both parties reap a real benefit. We also know how to demand and secure settlement agreements without NDAs when appropriate. If you believe you are being pressured to sign an NDA, contact us now for a no-cost initial consultation.
