By Chloe Holmes
On 1 August 2025, new legislation (the Higher Education (Freedom of Speech) Act 2023) was passed, which prohibits higher education providers in England from entering into non-disclosure agreements (NDAs) with staff, members, students or visiting speakers in relation to issues of sexual harassment, sexual misconduct, complaints of sexual abuse or other bullying and harassment.
In the context of settling Tribunal claims between employers and employees in the higher education sector, this means that a settlement agreement cannot include a clause which would prevent a party from disclosing their experience with the types of misconduct set out above. This signals a shift towards more transparency and accountability in university governance.
The Rationale Behind the Change
The government’s decision to prohibit higher education providers from entering into NDAs in cases of sexual misconduct and harassment is rooted in a clear need to protect students and staff from being silenced.
The Government’s 2023 Impact Assessment (“the IA”) for the new legislation outlines in detail the rationale behind the change. Within this document, a BBC freedom of information request was referenced, and this found that nearly a third of universities (out of the 134 that provided information) had used NDAs for student grievances since 2016. 300 NDAs were used by those universities, totalling £1.3m paid out in individual settlements.
Further, the IA noted that NDAs have historically shielded perpetrators, allowing them to move to new positions or institutions without their misconduct being formally recorded or disclosed.
Students Three Times More Likely to Experience Sexual Assault
Individuals who have engaged in harassment or bullying may find it harder to secure roles at other institutions, reducing the risk of the same behaviour recurring elsewhere, protecting staff and students.
The IA also referenced research from the Office for National Statistics (ONS) in 2021 which found that between March 2018 and March 2020, students in England and Wales were over three times more likely than the general population to have experienced sexual assault. These statistics are indicative of the scale of the problem and the urgent need for greater transparency and accountability within universities.
The new legislation establishes a new obligation for registered higher education providers to actively uphold and encourage lawful freedom of speech and academic freedom within their institutions. In addition, individuals who have engaged in harassment or bullying may find it harder to secure roles at other institutions, reducing the risk of the same behaviour recurring elsewhere, protecting staff and students.
The Effect on HR and Governance
Universities are now increasingly expected to demonstrate ethical leadership and accountability, and not just academic excellence.
The change in legislation could change institutional behaviour, forcing higher education institutions to confront systemic issues head-on, rather than relying on NDAs as a “quick fix”. Senior management and governing bodies will likely now need to adopt a more proactive stance on safeguarding and workplace culture following this development.
The change will also affect HR professionals as settlement agreements and NDA precedents will need to be audited. Moreover, internal policies will also likely need to be updated to ensure compliance. It would also be sensible for HR professionals, employment law solicitors, legal professionals, and those in management positions to be trained on these developments and their obligations moving forward.
An unavoidable consequence of these changes is that, initially, there may be some reputational risk to these organisations as more cases become public. Further, there may be additional requirements for formal reporting and a possible pressure to publish statistics on complaints. However, ultimately the changes should strengthen long-term governance and rebuild trust among students, staff and the public.
Ethical and leadership considerations
Beyond ensuring compliance with the legislation, the ban on NDAs will put pressure on university leaders to foster a culture of accountability and integrity. These values would need to be embedded in the institutions’ values and decision-making. It should not be merely about avoiding legal risk but about demonstrating ethical leadership, which prioritises the welfare and free speech of its students and staff.
This change will also push leaders, who are able to make commercial decisions, to effectively allocate resources to HR, legal and safeguarding functions whilst also maintaining public confidence, student satisfaction and staff morale.
Universities that are able to navigate this landscape well will be able to strengthen their brand, attract talent and demonstrate the ethical and responsible governance which investors and regulators will now expect.
The Wider Movement Against NDAs
NDAs are not only being challenged in higher education, but it’s use is also being addressed by the government in different sectors. Section 17 of the Victims and Prisoners Act 2024 which came into force on 1 October 2025, voids any provision in an agreement preventing disclosures by victims of criminal conduct in England and Wales.
The changes represent a broader shift in societal attitudes towards harassment, power dynamics and accountability from employers and institutions generally.
Further, an amendment to the Employment Rights Bill regarding NDAs has been proposed. The provision would prevent adding clauses in any agreement, between an employer and employee, that stop the employee from disclosing incidents of harassment and discrimination unless contained in an “excepted agreement”. However, the definition of “excepted agreement” is still currently unclear.
In practice, it is possible that employers will feel less incentivised to settle discrimination and harassment claims. This could mean employees are more likely to have to take a case through to a full Employment Tribunal, potentially increasing legal costs, administrative burden, and public scrutiny for the institution.
These changes represent a broader shift in societal attitudes towards harassment, power dynamics and accountability from employers and institutions generally.
Next steps
The NDA ban represents more than just a legislative change; it signals a cultural shift for English higher education. Universities are being prompted to reconsider how they manage allegations of misconduct and how they can prevent these issues from occurring in the first place.
Accountability and ethical leadership will now need to be at the forefront of university governance, and systems will need to be changed to anticipate and manage risk in new ways to ensure that individuals are being actively protected. Whilst initial implementation may be complex, institutions that embrace transparency and robust governance are likely to strengthen trust, credibility, and resilience in the long term.
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