Reforms to confidentiality provisions

Confidentiality clauses that restrict individuals from making disclosures - particularly in relation to sexual harassment - have faced growing criticism in recent years. The Equality and Human Rights Commission issued guidance on their use in October 2019 and the Solicitors Regulation Authority published a warning notice to solicitors in 2018.

Within the education sector scrutiny has intensified. Changes to the Academy Trust Handbook (ATH) and College Financial Handbook (CFH) took immediate effect in October 2025. Separately, the Employment Rights Act 2025 (ERA 2025) introduces further restrictions on confidentiality agreements. Given these developments, employers should exercise caution and seek early legal advice before including such provisions.  

Specific restrictions for academies and colleges

In October 2025, the Department for Education (DfE) updated the ATH and CFH, imposing rules on confidentiality clauses associated with staff severance payments. Under these rules, such clauses are considered "novel, contentious or repercussive" and require prior DfE approval.

Furthermore, if confidentiality clauses are to be included, they must meet the following criteria:

• They must not prevent an individual's right to make disclosures in the public interest.

• They must not be used to prevent the DfE from obtaining sufficient information to assess such payments under its regulatory role.

Securing approval is expected to be challenging; current indications suggest HM Treasury will reject cases unless exceptional circumstances exist. Seeking consent may cause delays, particularly for schools and colleges trying to finalise departures before term-end. However, omitting confidentiality provisions may leave employers exposed in certain situations - in which case it may be appropriate to seek consent to include such provisions. Failure to obtain prior approval would be a breach of the relevant handbook. 

The Employment Rights Act 2025 

Beyond the specific education context, the ERA 2025 (which received Royal Assent on 18 December 2025) introduces broader measures to curb the misuse of non-disclosure agreements (NDAs) that silence employees subjected to harassment or abuse. Section 24 of the ERA 2025 introduces a new section into the Employment Rights Act 1996 which will render void any provision in an agreement between an employer and a worker that prevents the worker making allegations or disclosures relating to "relevant harassment or discrimination". This restriction is in addition to the changes that have been made to the ATH. 

Whilst the changes to the ATH and CFH are effective immediately, most of the ERA 2025 provisions will roll out gradually via Regulations. The timeline for confidentiality related provisions remains unclear, as they were not included within the Government’s implementation roadmap. In the meantime, consultations are anticipated - Peter Kyle announced there would be 26 consultations on various aspects of the Act. Employers should monitor developments closely and engage with Government consultations where possible.