Higher education providers are banned from using NDAs where there are allegations of sexual misconduct, bullying and harassment from 1 August 2025.

Brief Background

In early 2020, a BBC investigation exposed the shameful misuse of NDAs by universities to suppress complaints of misconduct. They found nearly one-third of universities in the UK used NDAs to resolve student complaints between 2016 and 2020. These complaints related to harassment, bullying, sexual misconduct (this included assault), poor teaching and lack of disability support. Payments under these agreements ranged from £250 to £40,000 in individual payouts, and it found that across 45 universities, £1.3 million had been paid out in total.

Following this investigation, the government pledged to crack down on the misuse of NDAs. It was clear that NDAs were only being used to silence victims and protect the university’s reputation, which allowed for repeated offences.

In July 2021, the Minister of Higher and Further Education wrote to all Vice-Chancellors of universities across the country, urging them to end all their “shabby practices” of using NDAs to silence victims of misconduct.

A public pledge was launched by the government in January 2022, in partnership with the campaign group #Can’tBuyMySilence, for universities to commit to never using NDAs in cases of sexual misconduct, bullying or harassment. A number of universities signed up immediately.

Higher Education (Freedom of Speech) Act 2023 (“the Act”)

The Higher Education (Freedom of Speech) Bill was created in 2022, and there was significant delay in its implementation. One of the causes for such a delay was due to the change in government in July 2024, which immediately halted the implementation of the Bill. It was their view that the Bill required further scrutiny and debate.

Whilst they were not against protecting freedom of speech on campus, the main concern was the risk of inadvertently protecting hate speech, which would only place minority groups at risk. The Act also allowed for civil claims to be brought against institutions for breaches of the Act, which could lead to significant financial issues for universities. After much debate, the Act was amended to state that freedom of speech was protected “within the law”, ensuring there was no risk of this protection applying to hate speech, and removed the ability to pursue a civil claim. The Act subsequently came into force on 1 August 2025.

The objective of the Act has a dual purpose:

1. To protect freedom of speech, within the law, for staff, members, students and visitors of higher education in England, and,
2. To increase institutional accountability by explicitly prohibiting the use of NDAs in relation to a complaint or disclosure of information regarding misconduct.

Misconduct has been defined as sexual abuse, sexual harassment or sexual misconduct, and bullying or harassment.

Now, higher education providers cannot restrict or prohibit a person from disclosing their own experience of misconduct or from seeking professional or legal advice about it. This is the crucial freedom the ban restores.

Code of Practice (“the Practice”)

Whilst the Act was brought in to prevent NDAs, it also goes on to set out a clear Code of Practice that the governing body of higher education providers must follow.

The Code of Practice should set out:

• Their values and an explanation of how these values uphold freedom of speech;
• A clear and easy-to-follow procedure for how students, staff and speakers can use university space for meetings or events to talk or hold an event on campus;
• The rules that must be followed when deciding whether to allow a controversial speaker;
• The right to hold events or meetings unless there’s a serious, lawful reason to stop it (i.e. if they may incite hate speech);
• Steps the university will take, including potential disciplinary action, if the Code of Practice is not followed.

The Act states that the higher education provider must actively use the Code of Practice, and other materials, to regularly tell everyone on campus about the importance of both free speech and academic freedom.

Implications of the Act

These new changes will force higher education providers to have greater accountability and place significant pressure on them to take proactive steps that can be reasonably practised, to promote and allow freedom of speech.

The Act also forces governing bodies to address complaints of bullying, harassment or any sexual conduct rather than seeking ways to protect their own reputation and relying upon NDAs to silence the victims. If they have not already done so, they must review their own internal complaints procedures and all relevant staff should be trained on how these procedures are applied, along with the new Code of Practice that is required.

Universities are also expected to provide appropriate support for the person who has made the complaint, and this should be clearly set out in their own policies.

Failing to comply with the Act and Code of Practice, the Office for Students (OfS), as the regulator, can enforce the Code of Practice and issue fines or penalties for non-compliance, including breach of the NDA ban.

Wider Changes

Whilst the Act currently only covers England, the government are making a concerted effort to expand these protections throughout the rest of the country.

From 1 October 2025, for England and Wales, the Victims and Prisoners Act 2024 (VPA 2024) will void any provision in an agreement which prevents disclosures by victims of criminal conduct.

There has also been a proposed late amendment to the Employment Rights Bill to void any provision in an agreement between an employee and employer that prevents disclosure about harassment and discrimination. This will apply across England, Wales and Scotland if it comes into force. This is still a new proposal and requires further consultation, but this could have a significant impact on all businesses across the country.

Final Thoughts

Driven by the BBC investigation in early 2020, the Act marks a pivotal shift in the legal landscape of UK universities, fundamentally altering their duties regarding both speech and misconduct. It demands greater accountability and transparency from universities, ensuring that academic discourse is rigorously protected while simultaneously securing a safer environment for students and staff by eliminating the tools historically used to silence victims of abuse.

Whilst this only applies to higher education providers in England, this is set to expand and could provide further protection to all employees across the UK if the Employment Rights Bill includes this new amendment, with the potential change to take place next year.

Written in collaboration with Alex Hodson. Alex is a Senior Associate at Redmans Solicitors. She advises and supports individuals through various employment matters, such as grievances and tribunal claims