Employment Alert – Government call for evidence on TUPE and consultation on proposed safeguards for use of NDAs
What’s happening?
The Government has launched consultations on two proposed changes to employment law:
- Potential reforms to TUPE, aimed and strengthening and modernising the regime; and
- Proposed safeguards to prevent the misuse of NDAs in harassment and discrimination cases.
Potential reforms to TUPE- Call for evidence
On 8 April 2026, the Government launched a call for evidence seeking views from employers and other stakeholders on whether TUPE is working effectively and how it could be improved
The call for evidence includes 24 detailed questions covering, among other things:
- The effectiveness of current employee protections.
- The difficulty of identifying when a TUPE transfer has occurred.
- The practical operation of transfers, including information and consultation obligations.
- The availability and usefulness of current guidance.
- When and how employee contractual terms may be varied post‑transfer.
- The cost and business impact of TUPE.
- Whether TUPE has had unintended consequences, including for individuals with protected characteristics.
The deadline for responses is 1 July 2026. The Government will review responses and may consult further on specific reform proposals, although no specific proposals have been put forward.
Proposed safeguards to prevent misuse of NDAs – Consultation
A separate consultation has been launched on the conditions that must be met for non-disclosure agreements (NDAs) in harassment and discrimination cases to be enforceable.
This follows the introduction of section 202A of the Employment Rights Act 1996 (inserted by the Employment Rights Act 2025), expected to come into force next year. Once in force, NDAs preventing workers from making allegations or disclosures about harassment or discrimination will be void, unless they qualify as an “excepted agreement”.
The consultation sets out the detail of “excepted agreements” and proposes a number of safeguards, including:
- Independent written advice for the worker;
- Written confirmation that the worker wishes to enter into the agreement;
- A mandatory 14‑day cooling‑off period (with views sought on whether this should be waivable);
- A written and accessible copy of the agreement;
- Limits to past conduct only (preventing pre‑dispute NDAs); and
- Time‑limited confidentiality, subject to a statutory maximum duration.
The Government is also seeking views on extending these protections to groups such as agency workers, interns and trainees, certain NHS professionals and vulnerable self‑employed individuals.
The consultation closes on 8 July 2026.
Why is this important?
TUPE remains a high-risk and complex area for employers. Any reform of TUPE could have significant implications for employers, including:
- Greater (or potentially clearer) obligations around employee information and consultation.
- Changes to the rules on harmonising terms and conditions post‑transfer.
- Adjustments to the scope of TUPE or how a “relevant transfer” is defined.
- Increased or reshaped compliance requirements, with cost and timing consequences for transactions.
This call for evidence signals a clear policy intention to revisit a regime that many employers consider uncertain, administratively burdensome and commercially restrictive. Employers’ experiences during this evidence‑gathering phase are likely to shape the government’s eventual policy direction.
The proposed safeguards for NDAs in harassment and discrimination cases represent a significant tightening of the current rules in the employment context. Whilst some of the proposed requirements are already a standard part of the settlement agreement process, the proposed cooling off period, requirements for advice to be provided in writing and time limits on confidentiality clauses would be significant changes. If introduced, the process of negotiating such agreements will be more complicated and time-consuming. The proposed extension of these restrictions to agency workers substantially extends the potential scope of the changes and the impact on employers.
What should you do?
Engage:
- Respond to the call for evidence for TUPE online here or email: [email protected].
- Respond to the NDA consultation online here or email [email protected]
Advice: TUPE and NDA requirements are unchanged for now and employers must continue to comply with existing law. If you need advice please contact [email protected] who can put you in touch with one of our specialist employment lawyers.
We will update you as the Government’s proposals develop. All comments and information were accurate at the time of publication and may not reflect current developments. This should not be relied upon without seeking appropriate professional advice.
