NDA ban in higher education put on hold

On 1 August 2024, section 1 of the Higher Education (Freedom of Speech) Act was due to come into force. Its provisions included a ban on the use of a non-disclosure agreement in relation to a complaint of sexual abuse, sexual harassment, sexual misconduct, bullying or harassment made by:

• staff
• members
• students
• visiting speakers

On 24 July 2024, the Government announced that this legislation would not be coming into force as it was not fit for purpose and required review (the whole Act not just the NDA provisions). The issue of freedom of speech at universities is a controversial one and the legislation will therefore be revisited by the new Government. 

On 31 July 2024, the Office for Students announced new registration requirements for Universities including that from 1 September 2024, providers will not be able to use NDAs “in cases where students make allegations of harassment or sexual misconduct”.

So, it appears that the gap that has been created by the announcement on 24 July 2024 has been narrowed in respect of NDAs with students, but there is not yet a replacement provision outlawing NDAs with staff in issues of sexual misconduct etc. We suspect that a ban in relation to staff NDAs will happen as there is no stated intention from the Government to row back on this element of the legislation and it may be that the ban is just a temporary casualty of the withdrawal of the whole act.