NDAs, Whistleblowing, Discrimination & Harassment

Whistleblowing

The Government previously promised to strengthen protection for whistleblowers, “including by updating protection for women who report sexual harassment at work.”

The ERA 2025 amends the list of disclosures qualifying for protection under whistleblowing laws to explicitly include sexual harassment. Workers who make a disclosure of information about sexual harassment that has occurred, is occurring, or is likely to occur will now be explicitly covered by whistleblowing protections (such as protections from detriment or dismissal), if they have a reasonable belief that their disclosure is in the public interest.

There are already protections against victimisation at work for raising a complaint of sexual harassment under the Equality Act 2010, and sexual harassment disclosures may also qualify for protection under whistleblowing laws as they were before 6 April 2026 (if for example a criminal offence). However, the fact that this is included explicitly may raise awareness of this.

The change also explicitly means that NDAs cannot prevent such protected disclosures from being made, something which has been a hot topic in the press for some time. Note that this is separate from and in addition to the measures introduced under the Victims and Prisoners Act 2024 from 1 October 2025 (see our article here). 

Separately, on 12 October 2026, the Government launched a consultation on whether the existing framework for whistleblowing is operating effectively and proposing options for reform. It seeks views on a range of matters including:

• Whether whistleblowing protections should be expanded to capture a wider group of individuals. The consultation sets out a number of factors that the Government considers to be relevant, noting that some groups such as volunteers may not meet the criteria but others, such as some self-employed individuals, might
• Whether reform or updated guidance is needed to the ‘public interest’ test, although the Government has confirmed there is no intention to remove the test
• Whether the categories of wrongdoing should be expanded or clarified, including to capture risks arising through the development of AI technologies, misuse of public funds and abuse of authority
• Whether changes should be made to disclosure routes, such as explicitly protecting disclosures made to trade union officials and considering the threshold that must be met when making a disclosure to a prescribed person
• Potentially introducing a statutory duty requiring employers to have appropriate and effective procedures for handling whistleblowing disclosures, as well as a policy explaining these procedures to workers and a requirement to follow up on disclosures. An alternative option is also put forward to instead publish more detailed non-statutory guidance to help employers handle whistleblowing disclosures. If the new statutory duty is pursued, the consultation indicates that this could apply to all private sector employers with 50 or more employees, and all public sector employers, albeit with possible exclusions for businesses already subject to equivalent requirements, for example FCA regulated organisations. The consultation considers introducing the duty in phases to allow employers time to prepare
• Whether the deadline for applying for interim relief in whistleblowing cases should be extended from 7 to 14 days
• Whether the Government should establish a central whistleblowing body to receive disclosures and direct them to the relevant prescribed body, or whether a new AI-assisted tool could help workers identify the correct prescribed person

The consultation also seeks views on the Serious Fraud Office’s proposal to develop a scheme to reward people who provide information about economic crime, where that information leads to enforcement action.

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Timing and developments

The inclusion of sexual harassment in the list of qualifying disclosures was included in the ERA 2025.  

The whistleblowing measures under the ERA 2025 took effect on 6 April 2026.

The consultation into wider reforms to the whistleblowing framework launched on 12 October 2026 and closes on 8 January 2027.

NDA restrictions

The ERA 2025 will make any provision in an agreement between an employer and a worker void in so far as it purports to prevent the worker from making an allegation or a disclosure of information relating to relevant harassment or discrimination. The Government impact assessment, published on 17 July 2025, emphasised that this would only void the part of a contractual provision that seeks to prevent such allegations or disclosure related to harassment or discrimination; the rest of a provision would stand.

Key points are:

• These provisions apply in respect of confidentiality clauses which purport to prevent an employee making an allegation or disclosure of information relating to (i) relevant harassment or discrimination by a worker or (ii) an employer’s response to either the relevant harassment/ discrimination itself or to the making of an  allegation/ disclosure of information relating to the relevant harassment/ discrimination.
• ‘Harassment or discrimination’ for these purposes is limited to harassment and discrimination under the Equality Act 2010. It will be “relevant harassment or discrimination” if (i) it consists (or is alleged to consist) of conduct by the worker’s employer or another worker of that employer; or (ii) the person alleged to be the victim of the harassment or discrimination is a worker of the employer. This may potentially cover third-party harassment claims and victimisation claims.
• The prohibition applies to any agreement between an employer and a worker of the employer, and so would, as currently drafted, include both employment contracts and settlement agreements.

The ERA 2025 does not contain all the detail, however, certain powers are reserved to the Government to make regulations to:

• Except certain agreements so that the ban would not apply (“excepted agreements”); and
• Extend the remit of the prohibition to cover others who are not workers, such as those in work-experience or training or contractors.

The Government launched a consultation on 15 April 2026 seeking views on (i) the conditions which need to be met for an NDA to be an “excepted agreement” and how such an excepted agreement should operate, and (ii) expanding the types of individuals the legislation applies to beyond employees and workers.

Excepted agreements

The Government’s current proposals in respect of the conditions for “excepted agreements” include:

• Requiring the worker to receive written independent advice (e.g. from a lawyer or Acas) on the terms and effect and legal limitations of the NDA. This would be the case regardless of the type of document the NDA is contained in, so for example would capture employment contracts as well as settlement agreements.
• Requiring the worker to express their preference to the employer in writing that they wish to enter into the agreement following receipt of such independent advice.
• The introduction of a “cooling off” period, which would give the worker the right to withdraw from the agreement without penalty within 14 calendar days of it being entered into. The consultation also explores whether this cooling off period should only apply to the NDA provisions or for example a broader settlement agreement in which the NDA provision is contained.
• Permitting excepted agreements to be entered into only where the incident (or alleged incident) of relevant harassment or discrimination has already taken place and shouldn’t be used to prevent a worker speaking out about harassment or discrimination that may occur in the future. Whether an excepted agreement should be time-limited (whether to be agreed by the employer and worker in the agreement or whether, going further, an excepted agreement should be subject to a statutory maximum time-limit between 1-10 years for example).

The Government also sought input on what disclosures should be permitted, even where there is a valid NDA entered into by way of an excepted agreement. The Government proposes a list of individuals to whom workers could make “permitted disclosures” to after having signed an excepted agreement (e.g. lawyers, regulated professional advisors such as tax advisors etc).

Extending beyond workers

The consultation sought views on whether the new NDA restrictions should extend beyond “workers” to other individuals who “may be vulnerable to the misuse of NDAs”. The consultation sought views on including: agency workers, secondees, work experience placements, nurses/midwives in training, NHS self-employed contractors and any other specific groups of self-employed individuals that should be included. The consultation indicated that the Government may consider a staggered approach to implementation by implementing the provision as currently drafted for workers, with the possibility of extending this to others in the future.

This is a significant change, that will likely have an effect on how settlement agreements are used in respect of claims of discrimination or harassment. Employers will be waiting to see the outcome of the consultation and what exceptions will be carved out by regulations. See our article (here) for further thoughts on this topic.

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Timing and developments

Included in the ERA 2025.  

Government powers to make certain regulations to clarify the extent of the right came into force on 6 April 2026. Previously, the timing for this was unknown but the Government updated its implementation timeline on 15 April 2026 to indicate that the NDA measures are expected to take effect in 2027. The consultation was open until 8 July 2026.

Third party harassment

The ERA 2025 (re)-introduces employer liability for third party harassment relating to all the protected characteristics covered by harassment under the Equality Act 2010 (i.e. age, disability, gender reassignment, race, religion or belief, sex and sexual orientation) as well as sexual harassment and less favourable treatment because the individual has either submitted to or rejected sexual harassment or harassment related to sex or gender reassignment. Employers will be liable if a third party harasses an ’employee’ (a broader definition under the Equality Act 2010 including employees, workers and apprentices) in the course of their employment and the employer failed to take all reasonable steps to prevent the third party from doing so.

Under these provisions, liability can arise for a single act of third party harassment – unlike the previous third party harassment provisions in the Equality Act 2010 that were repealed in 2013, which provided that employers were not liable for third party harassment unless there had been at least two other incidents of harassment by a third party.

Notably, provisions seeking to introduce third party harassment were previously dropped during the passing of the Worker Protection (Amendment of Equality Act 2010) 2023 (the ‘Worker Protection Act’) under the previous Conservative Government given some of the practical difficulties that this could have for employers.

This is a significant change. This will likely have a greater impact on employers operating in sectors where workers frequently come into contact with third parties where there is often no relationship with such third parties (such as customers in a shop). However, most workplaces will involve some interaction with third parties and will be impacted. Employers should consider undertaking risk assessments to identify areas of risk of third party harassment to identify what steps can be taken to prevent those risks.

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Timing and developments

Included in the ERA 2025.  

The Government’s timeline (updated on 25 September 2026) indicates that the third party harassment measures will take effect on 30 October 2026.

Sexual harassment

The Worker Protection Act, which came into force on 26 October 2024, introduced a legal duty on employers to take reasonable steps to prevent sexual harassment of employees (under the broader Equality Act 2010 definition) in the course of their employment. The ERA 2025 will increase this new obligation so that employers must take “all reasonable steps” to prevent sexual harassment.

What will entail “all reasonable steps” awaits to be seen. The Government’s Factsheet explains that the Government considers it states that they believe it is important that the threshold in the preventative duty is consistent with the existing  “all reasonable steps defence” for employers to avoid vicarious liability. This is a high hurdle, as an employer will not be considered to have taken all reasonable steps if there are any further steps that they could reasonably have taken.

However, the ERA 2025 includes new powers for regulations to be made to specify what steps are to be regarded as “reasonable” (although currently it appears that these may come into effect after the new enhanced duty will). A call for evidence launched on 7 April 2025 (now closed), asked for evidence of effective steps employers can take to reduce and/or prevent sexual harassment to feed into these regulations. Central regulations on steps may help employers have a better understanding of what will be required to satisfy this higher duty, although the Government’s Factsheet does emphasise that employers will be required to take the relevant steps set out in the regulations, as well as other preventative steps that it is reasonable for them to take in the particular circumstances.

In addition, the call for evidence looked at extending legal protection from sexual harassment to volunteers, which are not currently covered by such protections in the Equality Act 2010.

This extends the current preventative duty even further and so will likely be harder for employers to demonstrate that all reasonable steps have been taken to prevent sexual harassment. Risk assessments and steps plans should be revised for this enhanced right.

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Timing and developments

Included in the ERA 2025.  

The Government’s timeline indicates that the requirement for employers to take “all reasonable steps” to prevent sexual harassment will come into effect on 30 October 2026 and that the Government will be introducing a power to enable regulations to be made which will specify “evidence-based” steps which employers must take to prevent sexual harassment. The timeline no longer contains details of when these regulations will likely come into effect, but notes that the steps set out in the regulations will complement, not replace, broader legislation and guidance. The Government’s Factsheet had also previously indicated that expected commencement for the regulations defining “reasonable steps” would be 2027/2028 (after consultation), so the timing is not entirely clear.

Public sector socio-economic duty and dual discrimination

The Government has said previously it would bring into force certain provisions in the Equality Act 2010. A call for evidence launched (now closed) confirmed that the Government is committed to bringing into force the following:

• Protections against dual discrimination, i.e. where discrimination is because of a combination of two relevant protected characteristics, in section 14 of the Equality Act 2010 (which has never been brought into force since the Equality Act 2010 became law).

• Public sector socio-economic duty in section 1 of the Equality Act 2010 in England (it is currently in effect in Scotland and Wales and some councils in England have voluntarily adopted it). This requires specified public authorities when making decisions of a strategic nature about how to exercise its functions, to have due regard to the desirability of exercising them in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage.

Previously, the above changes were included within a wider call for evidence on equality law, including discussions on equal pay and pay transparency. A consultation on equal pay was published on 14 July 2026 but these were not mentioned. It may be that these proposals as being dealt with as separate issues.

The protections against dual discrimination, if introduced, may make existing discrimination laws more complex for employers to navigate. The public sector socio-economic duty will affect specified public authorities.

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Timing and developments

Not in the ERA 2025.

The public sector socio-economic duty and dual discrimination measures are subject to a call for evidence (now closed) and a response is awaited. As these are essentially lying dormant on existing statute books, these could be enacted easily. Timings are currently unknown.