By luck or judgment two separate regulatory regimes applying in the HE sector came into effect on the same day last month.
They are condition E6, the new condition of registration imposed by the Office for Students to better protect students from harassment and sexual misconduct, and a revised duty to secure freedom of speech within the law set out in the Freedom of Speech Act 2023.
Both regimes impose restrictions on the use of non-disclosure agreements (NDAs) by HE institutions. However, their scope is slightly different.
Condition E6 forbids provisions which have the object or effect of preventing students from “disclosing information about an allegation of harassment and/or sexual misconduct, which in any way involves or affects one or more students” to any other person. These restrictions on NDAs were introduced as free-standing requirements on 1 September 2024.
The Freedom of Speech Act measures also relate to harassment and sexual misconduct, but the restrictions are not confined to misconduct affecting students. These restrictions extend to NDA provisions in agreements that prevent anyone connected with the institution, including visiting speakers, from disclosing information about a complaint they have made about misconduct to any other person.
In an ideal world, these two separate regulations would be better aligned, but in practice, institutions will be able to square the circle by following the more onerous of the two provisions in any given situation.
The regulatory guidance on condition E6 states:
Although this provision does not apply to other persons, providers should consider the wider requirements of this condition in applying such restrictions to other persons such as staff, and not to inhibit discussion of these issues that might support those who have experienced harassment or sexual misconduct, or allow issues to be aired and properly addressed.”
This suggests the guidance appears to anticipate the free speech measures. However, somewhat strangely, the issue of NDAs is not mentioned at all in the OfS’s regulatory advice on the free speech duty.
And there’s more
As if two overlapping NDA regimes were not troublesome enough, a third is now in sight. Amendments to the Employment Rights Bill in July 2025 (at report stage in the House of Lords) impose new restrictions on confidentiality clauses relating to harassment and discrimination (as defined in the Equality Act 2010).
Again, the scope of the targeted misconduct (harassment or sexual misconduct) is similar, but these provisions focus on workplace harassment and are confined to restrictions in agreements between workers and employers. There is also the possibility of exceptions being created by regulations, though we don’t know what these would look like yet.
So, the scope of the restrictions will be narrower than the current legislation universities operate under. However, the range of misconduct covered is wider as it extends to direct and indirect discrimination as well as harassment. Though this does not include breach of the reasonable adjustments duty or victimisation.
Bringing it all together
All three sets of restrictions build on existing limits to NDAs.
First, there are currently provisions that protect whistleblowers from signing gagging clauses that prevent them from making a disclosure. The connection between sexual misconduct and protected disclosures will be made explicit by another proposed measure in the Employment Rights Bill, as it adds disclosure of information about sexual harassment to the list of disclosures qualifying for whistleblower protections.
Many protected disclosures involve misconduct that is potentially criminal. It is already the case that an NDA will be unenforceable to the extent that it seeks to prevent reporting of a criminal offence to the relevant authorities or cooperating with their enquiries. These rules will be codified in a slightly broader form by provisions in the Victims and Prisoners Act 2024, coming into effect on 1 October 2025.
Secondly, lawyers involved in the drawing up of confidentiality agreements will be aware of the warning notice from the Solicitors Regulatory Authority, first issued in 2018 and revised in August 2024. The warning notice means it will amount to professional misconduct to draft NDAs that are not legally enforceable, or to obscure limitations in the scope of the confidentiality requirements being lawfully imposed by using obfuscatory drafting.
There are also broader reputation and compliance issues to consider. As a result, several policy initiatives exist to encourage HEIs to limit or eliminate the use of these agreements. One of the most significant recent developments was the launch in 2022 by Universities UK of a strategic guide to tackling staff-to-student sexual misconduct. The guide considers that the use of NDAs can inhibit the development of a culture which makes this kind of conduct less likely, and says that they should not be used to prevent “reporting parties from speaking out or to restrict what the university might disclose to others.”
The development of placing limits on NDAs has been piecemeal and inconsistent, but the direction of travel is clear. It is increasingly difficult to use blanket NDAs. Thought needs to be given to the proposed reasons for and the effects of NDAs in relation to any aspect of an HEI’s operations. It will rarely be appropriate to seek NDAs in relation to issues of harassment or sexual misconduct, and other (common) processes and approaches for handling such situations effectively with staff, students, members, visitors, and other stakeholders will be required.
