University NDA on misconduct complaints

Short answer

For complaints about bullying, harassment or sexual misconduct, a registered higher education provider in England cannot lawfully require you to sign a non-disclosure agreement (NDA) that silences you about what happened. Since the relevant provisions of the Higher Education (Freedom of Speech) Act 2023 came into force, any such NDA is void and unenforceable against you. This applies whether you are a student, a member of staff, a visiting speaker or another person who has made a relevant complaint.

What the law says

The Higher Education (Freedom of Speech) Act 2023 inserted a duty into the regulatory framework requiring the governing body of a registered higher education provider to secure that the provider does not enter into a non-disclosure agreement with a person in relation to a relevant complaint. Where such an agreement is entered into, the Act states that it is void.

A relevant complaint means a complaint by a student, staff member, or other specified person about conduct that amounts to sexual abuse, sexual harassment or sexual misconduct, or to other bullying or harassment. A non-disclosure agreement is defined broadly as any agreement that purports, to any extent, to prevent the person from disclosing information about the complaint or about the conduct complained of. That means it does not have to be labelled an NDA. Confidentiality clauses buried in a settlement agreement, a compromise agreement, a mediation agreement, or a “no publicity” term can all be caught if they have the effect of silencing you about the misconduct.

The prohibition is regulated and enforced by the Office for Students (OfS), which treats compliance as part of a provider’s conditions of registration. This is separate from the general free speech duties in the same Act.

What this means in practice

The university cannot make signing an NDA a condition of dealing with, investigating or settling your complaint about bullying, harassment or sexual misconduct. If you are presented with a settlement that includes a confidentiality or non-disclosure term covering the misconduct itself, that term is void, and you cannot be validly bound by it or penalised for breaching it.

Being void means you are free to speak about your experience, including to a regulator, the police, a court or tribunal, a professional adviser, medical or support services, and to family or others, notwithstanding the wording of any agreement you may already have signed. A university cannot obtain damages or an injunction against you for breaching a confidentiality term that is void under the Act.

Important distinctions and limits

Confidentiality that protects other legitimate interests is not automatically banned. The prohibition targets NDAs that silence a complainant about bullying, harassment or sexual misconduct. It does not, for example, prevent a settlement from keeping the financial figure private in some situations, and it does not remove ordinary data protection obligations, duties of confidence owed to third parties, or the university’s own internal confidentiality that protects other students named in a process. If part of an agreement is caught, it is that offending part that cannot bind you, rather than necessarily the whole settlement.

Timing can matter. The prohibition bites on agreements entered into after the relevant provisions came into force. If you signed something earlier, its enforceability depends on the general law and the position is more nuanced, so the exact date you were asked to sign is a material fact.

You are also always free to enter into confidentiality voluntarily if you genuinely want to. The point of the law is that the university cannot impose it on you or make it a condition. You should never feel pressured to accept silence in return for your complaint being handled.

What to do if you are asked to sign

1. Do not sign under pressure. Ask for a copy of the proposed agreement and time to consider it. There is no obligation to sign an NDA to have your complaint dealt with.

2. Read for any clause, however worded, that restricts what you can say about the conduct, the complaint, the outcome or the university’s handling of it. Terms about non-disparagement, publicity, or confidentiality can all have a silencing effect.

3. Raise it in writing with the university, stating that the Higher Education (Freedom of Speech) Act prohibits NDAs in relation to complaints of this kind and that you are not willing to accept a confidentiality term that silences you about the misconduct.

4. Keep all correspondence and any versions of the agreement you are sent, together with a note of who asked you to sign and when. This evidence matters if you later complain to the regulator.

5. If the university insists, you can report the matter to the Office for Students, which regulates compliance with this duty. You can also complain through the university’s own complaints process and, if you remain dissatisfied and you are a student, to the Office of the Independent Adjudicator for Higher Education.

If you have already signed

If you signed such an agreement recently, the confidentiality term relating to the misconduct is likely to be void, so you are probably free to speak out despite it. Before doing anything that would breach it, it is sensible to confirm the date you signed and to check whether any part of the agreement protects legitimate separate interests, because those parts may still stand. If the university threatens you for speaking, point them to the statutory ban and keep a record of the threat.

Key missing facts

The precise answer can depend on whether you are a student or staff member, whether the provider is a registered higher education provider in England (the regime applies to registered providers in England rather than to every institution), when you were asked to sign, and the exact wording and purpose of the clause. If you can tell me those details, and whether you have already signed anything, I can give you a more targeted answer and help you frame a response to the university.