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.

Currently, 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 current whistleblowing laws (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 will not be able to 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). 

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Timing and developments

Included in the ERA 2025.  

The Government’s updated timeline indicates that whistleblowing measures will take effect on 6 April 2026.

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.
• Certain powers are reserved to the Government to make regulations to:
  • Except certain agreements so that the ban would not apply – the Government impact assessment, published on 17 July 2025, indicates that regulations “are expected to set strict conditions for NDAs to be validly made (eg. if a worker requests one);” and
  • Extend the remit of the prohibition to cover others who are not workers, such as those in work-experience or training or contractors.

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 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.  

The NDA measures introduced on 7 July 2025 were announced after the Government’s original roadmap was published and are still not included in the Government’s updated timeline. Timing for implementation is therefore still unknown. However, comments during debates by Peter Kyle MP indicate that the Government would be “moving as fast as possible to consult on the related secondary legislation and commence the measure.” The Government Factsheet confirms a Government consultation is anticipated and a commencement date will be announced in due course.

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 updated timeline indicates that third party harassment measures will take effect in 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 updated timeline indicates that the requirement for employers to take “all reasonable steps” to prevent sexual harassment will come into effect in October 2026, along with a power to enable regulations to specify steps that are to be regarded as “reasonable”. However, the updated timeline also says that the specific steps that are to be regarded as “reasonable”, to determine whether an employer has taken all reasonable steps to prevent sexual harassment, will not come into effect until 2027 (which is after the enhanced duty is anticipated to come into force). 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) confirms 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.

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.