UK NDA Reforms vs US Practice: From “Gagging Clauses” to Crime Carve-Outs ⚖️

Published: October 7, 2025 • NDA

Non-disclosure agreements have gone from sleepy boilerplate to political lightning rods.

The UK has just moved decisively to rein in the use of NDAs to silence victims of abuse and crime, while the US is still living in a patchwork world of federal carve-outs and state-by-state restrictions.

If you’re drafting NDAs, settlement agreements, or employment contracts for clients who operate in both jurisdictions, the divergence is now big enough that you can’t just “tweak the governing law clause” and call it a day.

Contents

Snapshot of the New UK NDA Regime 🇬🇧

Three overlapping developments are reshaping NDAs in England & Wales:

Victims and Prisoners Act 2024 – Section 17 (in force 1 October 2025)

Section 17 radically limits how far a confidentiality clause can bite against anyone who is, or reasonably believes themselves to be, a victim of crime.

For NDAs entered into on or after 1 October 2025:

Any provision is unenforceable to the extent it purports to stop a victim from sharing information about the relevant conduct with specified “permitted” recipients, for specified purposes. (GOV.UK)

Those permitted recipients include (in summary):

the police and other law-enforcement bodies,
lawyers,
medical professionals, and
recognised support services and certain regulators.

The government guidance for individuals puts it bluntly: if you’re a victim of crime, your NDA cannot stop you reporting to the police or getting advice and support. (GOV.UK)

The same basic principle applies to witnesses in many contexts: the intention is that NDAs cannot be used to obstruct criminal justice or keep systemic abuse buried.

Employment Rights Bill 2025 – Harassment and Discrimination NDAs

The new Labour government has also amended the Employment Rights Bill to go after “gagging clauses” used in workplace harassment and discrimination cases.

Core ideas in the reforms:

NDAs that silence victims of harassment or discrimination will be null and void.
The ban will extend to confidentiality and non-disparagement clauses in settlement agreements and employment contracts, not just standalone NDAs. (GOV.UK)
Employers cannot require a gagging NDA in resolving harassment / discrimination claims; confidentiality can only be included where the worker actively requests it, subject to safeguards. (Greenberg Traurig)

At the same time, disclosures by workers about sexual harassment are being treated as protected whistleblowing for employment-law purposes, so NDAs cannot cut across those rights. (Doyle Clayton)

The net effect: confidentiality is still possible in principle, but the default flips. Silence about harassment and discrimination is no longer something employers can buy; it is, at best, something a worker can choose.

ACAS / sector guidance and higher-education lead-in

ACAS and government guidance have been updated to reflect the new regime. Even before the latest reforms, NDAs already couldn’t lawfully stop: (Acas)

whistleblowing,
reporting a crime to the police,
discussing pay for equal-pay purposes.

Since August 2025, employers in higher education in England have been specifically barred from using NDAs to stop workers disclosing bullying, harassment, or sexual misconduct. From October 2025, the crime-victim carve-outs extend across all sectors. (Barcan and Kirby Solicitors in Bristol)

This is not just soft guidance: NDAs that conflict with those statutory carve-outs are void and unenforceable to that extent.

The US Landscape: Narrow Federal Carve-Outs and State-Level Innovation 🇺🇸

Contrasted with the UK’s national reforms, US NDA law is more fragmented.

Federal: The Speak Out Act and companions

At the federal level, the key statute is the Speak Out Act (2022).

It does not ban NDAs outright. Instead, it makes pre-dispute NDAs and non-disparagement clauses judicially unenforceable to the extent they would prevent a person from speaking about sexual assault or sexual harassment in the workplace or in certain other contexts. (OnLabor)

Important boundaries:

It focuses on pre-dispute clauses (e.g., boilerplate in employment contracts or handbooks).
It does not categorically invalidate post-dispute settlement confidentiality; parties may still agree to settlement NDAs, subject to other law.

Alongside that, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) invalidates pre-dispute arbitration requirements in those cases, not NDAs themselves, but it’s part of the same policy trend.

States: #MeToo-driven restrictions on harassment/discrimination NDAs

The real action is at state level.

By mid-2024, nearly 20 states had enacted some form of restriction on NDAs in workplace sexual-misconduct contexts, including Arizona, California, Colorado, Hawaii, Illinois, Louisiana, Maine, Maryland, Nevada, New Jersey, New Mexico, New York, Oregon, Tennessee, Utah, Vermont, Virginia, and Washington. (Venable)

Patterns vary, but common features include:

bans on NDAs that prevent disclosure of factual information relating to sexual harassment or, in some states, broader discrimination;
requirements that confidentiality be employee-initiated, with cooling-off periods or separate written consent;
plain-language and translation requirements;
prohibitions on retaliation for speaking with law enforcement or regulators.

For example:

California, Nevada, and New Jersey bar NDAs that prevent disclosure of facts underlying sexual-harassment claims in many settlement contexts. (Littler Mendelson P.C.)
New York expanded earlier restrictions, limiting NDAs in settlements involving all forms of discrimination, not just sexual harassment, and layering in language and consent requirements. (National Women’s Law Center)

But there is no single US federal rule equivalent to the UK’s Section 17 or the UK-wide Employment Rights Bill reforms. Instead you get a mosaic of:

narrow federal limits (Speak Out Act, EFAA);
strong NDA limits in some states;
relatively permissive regimes in others.

Side-by-Side: UK Reforms vs US Practice

⚖️ Issue / Theme	🇬🇧 UK (2025)	🇺🇸 US (federal + states)
Victims of crime and NDAs 🧩	Section 17 Victims and Prisoners Act: any NDA entered on/after 1 Oct 2025 unenforceable if it prevents a victim (or perceived victim) from disclosing to police, lawyers, doctors, support bodies or defined authorities. (GOV.UK)	No general crime-victim NDA statute; some limits arise via whistleblower protections, public-policy doctrines, or specific sectoral rules.
Harassment / discrimination “gagging” 🗣️	Employment Rights Bill: NDAs cannot be used to silence harassment/discrimination victims; confidentiality in such cases only if worker requests it, with safeguards. (GOV.UK)	Speak Out Act: pre-dispute NDAs unenforceable as to sexual assault/harassment. Post-dispute settlement NDAs allowed federally but heavily restricted in many states (CA, NY, NJ, WA, etc.), usually for sexual harassment and sometimes all discrimination. (OnLabor)
Witness protection 👀	UK reforms explicitly cover witnesses, nullifying NDAs that prevent them from speaking about harassment/discrimination or crimes. (Financial Times)	Some state laws protect witnesses in harassment/discrimination cases; federal law less explicit, relies on general anti-retaliation and whistleblower norms.
Sector-specific reforms 🎓	Early ban on NDAs silencing misconduct in higher education from Aug 2025; crime-victim carve-outs then generalised. (Barcan and Kirby Solicitors in Bristol)	State-by-state examples (e.g., tech, financial services focus; sectoral guidance from agencies) but no unified sectoral federal scheme.
Commercial NDAs (trade secrets, M&A) 💼	Government messaging emphasises that classic commercial NDAs remain available; reforms target misuse in HR / abuse contexts, not genuine trade-secret protection. (Financial Times)	US law similarly preserves robust trade-secret NDAs; reforms are narrowly targeted at sexual misconduct or discrimination in employment; commercial deals largely untouched. (Venable)

Conceptual Differences in How NDAs Are Viewed

The reforms reflect different baseline attitudes toward NDAs in the two systems.

UK: A Public-Interest Carve-Out Superstructure

UK policy is moving toward a simple position:

You cannot contract out of the public interest in exposing crime, harassment, and discrimination.
NDAs that try to do so will simply be carved back by statute and guidance.

Section 17 doesn’t ask whether the NDA is overreaching in the traditional restraint-of-trade sense; it declares certain restrictions on victims’ speech void as a matter of law, regardless of the parties’ bargaining power. (GOV.UK)

The Employment Rights Bill then goes further in the HR context, flipping the presumption: in harassment/discrimination cases, silence is suspect unless the worker started it and statutory conditions are met. (GOV.UK)

US: Incrementalism, Federalism, and Context

The US approach is more incremental and layered:

Federal law tweaks enforceability around sexual misconduct but leaves most NDA questions to states and general contract principles. (OnLabor)
States layer targeted restrictions on top of that, many of them limited to employment and harassment/discrimination claims, often with opt-in confidentiality and cooling-off mechanics. (Venable)

There is more tolerance for the idea that parties can choose to trade confidentiality for money in settlement, provided formalities are met and the employee isn’t completely silenced as to reporting to the government.

In practice, that means:

some US jurisdictions are now nearly as strict as the UK in harassment contexts;
others remain permissive;
and a multi-state employer has to navigate this jurisdiction by jurisdiction.

Drafting NDAs Now: Cross-Border Practicalities

For any employer with operations in both the UK and the US, the safe drafting move is to assume the UK floor applies everywhere and then tighten further for specific US states where required.

A simple way to think about it:

🌍 Scenario	🎯 Drafting Approach That Ages Well
UK employment settlement involving harassment or discrimination	Treat confidentiality as optional and worker-driven, with express carve-outs for reporting to police, regulators, medical providers, advisers, trade unions, and support services. Include explicit language that nothing prevents whistleblowing or crime reporting, and mirror MOJ / ACAS guidance where possible. (Acas)
US employment settlement in a “strict” state (e.g., CA, NY, NJ, WA)	Model the clause on state statute: employee choice, plain language, no bar on factual disclosure to law enforcement, regulators, or in response to subpoenas. Avoid pre-dispute NDA language that would conflict with the Speak Out Act. (Venable)
Global commercial NDA (trade secrets, M&A)	Keep focus on commercial information; expressly carve out disclosures regarding suspected crimes, regulatory breaches, harassment/discrimination, whistleblowing, and legally compelled disclosures. Make clear that nothing prevents seeking medical, legal, or therapeutic support. (GOV.UK)

A few drafting habits are rapidly becoming “must-haves” in both systems:

Clear carve-outs for police, regulators, lawyers, healthcare providers, and support organisations where the person is a victim (or perceived victim) of crime or serious misconduct.
Express language that nothing in the NDA restricts protected whistleblowing or disclosure of unlawful discrimination / harassment to enforcement bodies.
Differentiation between commercial confidentiality (pricing, trade secrets, source code) and behavioural / misconduct facts.

You can still write robust NDAs. The change is that in the UK, and increasingly in many US states, you have to accept that there are zones of speech you simply cannot lock down, even if both sides nominally “agree” at the time of signing.

Where This Might Go Next

The UK reforms—particularly the combination of Section 17 and the Employment Rights Bill—position it as one of the most aggressive jurisdictions in the world for curbing gagging NDAs in harassment, discrimination, and crime-adjacent contexts. (GOV.UK)

In the US, further movement is more likely to be state-driven than federal given current political dynamics, but the direction of travel in many blue and purple states is similar: more choice for victims, more carve-outs, and more suspicion of blanket secrecy provisions.

For practitioners, the bottom line is simple:

In UK matters, treat NDAs that purport to silence victims of crime or workplace abuse as inherently fragile and draft around the statutory carve-outs from the outset.
In US matters, stop thinking of “the NDA” as one product. For harassment/discrimination, you now have to design clauses around a moving target of federal carve-outs and state-level restrictions, many of which implicitly borrow the same logic the UK has just codified.

That’s a headache if you want to reuse old forms—but it’s also a very good reason to re-tool your NDA templates now, while you’re not yet staring at a regulator’s press release or a #MeToo-style media story quoting your “standard” gagging clause.