This is the Acas Executive response to the Department of Business and Trade consultation on Make Work Pay: misuse of non-disclosure agreements (NDAs). It was submitted on 26 June 2026.
Acas responses to specific consultation questions
Q5. For Acas-facilitated COT3 agreements, do you have any concerns about requiring the worker to have received independent advice in writing on the terms and effect, and legal limitations of the non-disclosure agreement?
a) Yes – if so, please explain what these concerns are, what might be the costs or implications and how might these be mitigated.
b) No
c) Don't know
Acas response: a) Yes
For this question, we have selected 'yes' so as to be able to explain our response in further detail.
Acas welcomes the opportunity to respond to this consultation on non-disclosure agreements (NDAs). We are supportive of the overarching policy objective that workers should properly understand the terms and effect of settlement agreements, including any non-disclosure provisions, before entering into them. Ensuring informed consent is fundamental to maintaining confidence in the fairness and integrity of dispute resolution processes.
Between February 2025 and January 2026, Acas received 54,131 early conciliation claims which recorded a jurisdiction of discrimination (this would include harassment cases, which are not currently recorded as a separate jurisdiction), and 29,897 employment tribunal (ET) claims which recorded a jurisdiction of discrimination (note that cases can have multiple jurisdictions). Of those, approximately 7,207 early conciliation (EC) claims (13%) and 6,181 employment tribunal claims (21%) settled through conciliation. We do not have data recording how many COT3s include non-disclosure agreement clauses, but from experience would find it fair to assume that a majority would include non-disclosure agreements (generally referenced within our policy as confidentiality clauses) that would be affected by the policy proposal.
In our view, in the context of COT3 agreements, a requirement for workers to obtain separate independent advice in writing in addition to the involvement of an Acas conciliator would introduce unnecessary duplication. A core function of Acas conciliators is already to ensure that parties understand the terms they are agreeing to and the implications of those terms, including any confidentiality provisions. Conciliators are trained to communicate clearly, check understanding, and support parties to reach informed decisions, particularly where one or both parties are unrepresented. The intent of the policy – that workers should properly understand the terms and effect of settlement agreements – is therefore already met in Acas cases.
Q6. Should Acas conciliators be included as relevant independent advisors?
a) Yes
b) No
c) Don't know
Please explain why.
Acas response: b) No
For this question, we have selected 'no' so as to be able to explain our response in further detail.
Acas conciliators already operate in a manner that aligns with the definition of 'independent advisors', as envisaged by the Department for Business and Trade. Acas training, policy, and operational guidance require conciliators to act impartially, engage with both parties fairly, and take steps to address potential imbalances of power – especially in cases involving unrepresented claimants. This includes ensuring that parties are not pressured into agreements and that they have adequate opportunity to consider terms.
That said, we have some reservations about explicitly categorising conciliators as 'independent advisors' within the statutory framework. The term 'independent advisor' has a specific and widely understood meaning in this context, typically implying that the advisor is acting on behalf of, and in the best interests of, one party – often providing tailored legal advice and recommending whether to accept or reject an agreement. This is materially different from the role of an Acas conciliator.
Acas conciliators do not act on behalf of either party and do not provide legal advice or recommendations about the merits of an agreement. Their role is to facilitate dialogue, ensure clarity of understanding, and support parties to reach a mutually-acceptable resolution through early neutral evaluation. There is therefore a risk that applying the label 'independent advisor' to conciliators could create confusion, particularly for individuals who are unrepresented or unfamiliar with the conciliation process. Such parties may reasonably expect the conciliator to take on a more directive or advisory role than is appropriate, including advising them on whether or not to enter into a non-disclosure agreement or settlement.
Additionally, we can see a risk that parties wanting to enter into a non-disclosure agreement could initiate an early conciliation claim purely to access conciliators in their role as 'independent advisor' especially if there are few or no other options who provide the service without cost. This could artificially inflate our early conciliation caseload.
If government does decide to include Acas conciliators within the definition of 'independent advisor' for these purposes, we strongly recommend that accompanying guidance should set out, in plain language, the scope and limits of the conciliator's role, including what they can and cannot do. We suggest any guidance explicitly distinguishes between facilitation and legal advice, and makes clear that conciliators do not represent either party or advise on the merits of the agreement.
Q12. For Acas facilitated COT3 agreements, do you have any concerns about requiring a worker to express their preference in writing to enter into the agreement?
a) Yes – if so, please explain what these concerns are, what might be the costs or implications and how might these be mitigated.
b) No
c) Don't know
Acas response: b) No
Q19. Do you have any concerns about requiring a 'cooling off' period in an Acas-facilitated COT3 agreement?
a) Yes – if so, please explain what these concerns are, what might be the costs or implications and how might these be mitigated.
b) No
c) Don't know
Acas response: a) Yes
We recognise the policy intention behind introducing a statutory 'cooling‑off' period for Acas‑facilitated COT3 agreements, particularly in ensuring that parties have sufficient opportunity to reflect before entering into a legally-binding settlement. However, we have a number of concerns about the potential practical implications of such a requirement.
The current Acas conciliation framework already builds in safeguards to ensure that parties have adequate opportunity to consider settlement offers. Conciliators routinely encourage parties to reflect on proposed terms and to ensure that agreements are entered into voluntarily and with a clear understanding of their implications. On this basis, it is not clear that a formalised cooling‑off period would add significant additional protection, while it would introduce additional complexity and risk.
We have concerns about how a cooling‑off period would interact with existing legal processes, particularly employment tribunal proceedings. In practice, COT3 agreements can be concluded at a very late stage in the process, including shortly before, or even on the morning of, a scheduled hearing. Under the current way of working, once a COT3 is agreed and is declared legally binding, the tribunal is notified that the claim has settled and the hearing can be vacated.
If parties were able to rescind a COT3 after a hearing had been vacated, this could mean either that the aggrieved party has no further recourse to justice, or that tribunals could face the need to re‑list cases at short notice. Given existing pressures on the tribunal system, including significant waiting times for hearings in some jurisdictions, this could lead to substantial delays. This could potentially extend to several years in some cases. This would undermine the efficiency and finality that COT3 agreements currently provide for both parties and for the tribunal system. We recommend that government engages closely with HM Courts and Tribunals Service (HMCTS) to assess operational impacts and to develop mitigating measures before any policy is implemented.
For the parties and the courts, there is also the potential for additional complexity working out limitation periods for early conciliation in relation to how the proposed cooling-off period interacts with the period for early conciliation.
For example, if a claimant settles with a week left in their early conciliation period and, after 10 days, they rescind their agreement, there would need to be water-tight provision to determine this person's time limit to lodge a tribunal claim. For example, is the week whilst they had an agreement in place counted for the purposes of 'stop the clock'? Did 'stop the clock' end when they entered into an agreement, thus meaning they're now under more pressure to lodge their claim with the employment tribunal? Similarly, if parties settle close to their employment tribunal deadline, should they still submit a claim to protect their position? If so, this could place unnecessary additional admin on the tribunal.
Added complication is likely to lead to more contests over limitation dates and, crucially, does not just apply to COT3 agreements.
In addition to further engagement with HM Courts and Tribunals Service, we propose the option of an opt-out to the cooling-off period if the claimant is satisfied that they have had adequate opportunity to consider the settlement terms through the conciliation process.