NDAs, Whistleblowing, Discrimination & Harassment

Policy

The Government has previously laid out some policy intentions in respect of strengthening protections for whistleblowers and in respect of third-party harassment and sexual harassment. It also proposed to bring into force certain provisions that are in the Equality Act 2010, but not (fully) in force. These are dealt with in turn below.

Whistleblowing and non-disclosure agreements (NDAs)

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

Currently, there are already protections against victimisation at work for raising a complaint of sexual harassment under the Equality Act 2010.

The Employment Rights Bill amends the list of disclosures qualifying for protection under whistleblowing laws to 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.

The change also 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 new measures being introduced under the Victim and Prisoners Act 2024 from 1 October 2025 (see our article here). 

NDA restrictions

In a last minute amendment, the Government on 7 July 2025 introduced significant new provisions, which, if passed, 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.

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 most types of discrimination under the Equality Act 2010, but it does not currently extend to a failure to make reasonable adjustments or victimisation. 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.
• 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; 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 new addition, that will likely have a significant effect on how settlement agreements are used in respect of claims of discrimination or harassment. See our article here for further thoughts on these amendments if agreed.

Third party harassment

In a significant change, the Employment Rights Bill (re)-introduces protection against third party harassment relating to all the protected characteristics covered by harassment (so not just sexual harassment). 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.

On the current drafting, an employer could be liable 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.

Sexual harassment

The Worker Protection Act, which came into force on 26 October 2024, introduces 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 Employment Rights Bill 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.  If the requirement for these steps is akin to the “all reasonable steps defence” for employers to avoid vicarious liability, then 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 Employment Rights Bill includes new powers for regulations to be made to specify what steps are to be regarded as ‘reasonable’. A call for evidence launched on 7 April 2025, is seeking evidence of effective steps employers can take to reduce and/or prevent sexual harassment to feed into these regulations. This may help employers have a better understanding of what will be required to satisfy this higher duty.

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

Public sector socio-economic duty and dual discrimination

The Government has previously said 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.

---

Timing and developments

Whistleblowing, third party harassment and sexual harassment

Included in the Employment Rights Bill.  

Further regulations are awaited to specify what steps are to be regarded as ‘reasonable’ in respect of the duty to prevent sexual harassment.  

The Government has said that measures will be implemented as follows: 

• April 2026 – whistleblowing protections 

• October 2026 – requiring employers to take “all reasonable steps” to prevent sexual harassment of their employees and introducing the obligation on employers not to permit the harassment of their employees by third parties. 

• In 2027, although a specific date is not provided – introducing a power to enable regulations to specify steps that are to be regarded as ‘reasonable’, to determine whether an employer has taken all reasonable steps to prevent sexual harassment 
  
• As the NDA measures introduced on 7 July were announced after the Roadmap was published, timing for implementation of this measure is still unknown.

Public sector socio-economic duty and dual discrimination

Not in the Employment Rights Bill.

Subject to a call for evidence (now closed) and response awaited. As these are essentially lying dormant on existing statute books, these could be enacted quickly via the Equality (Race and Disability) Bill.