The Employment Rights Act: A Deep Dive into Workplace Harassment and the Misuse of NDAs

The Employment Rights Act 2025 (the Act) will significantly strengthen the legal framework around workplace harassment, imposing higher standards on employers and expanding the scope of liability. This briefing summarises the key developments and the practical steps employers should be taking now.

Enhanced Whistleblowing Protections

Since 6 April 2026, disclosures relating to sexual harassment — whether it has occurred, is occurring, or is likely to occur — are now recognised as qualifying disclosures under whistleblowing legislation. This gives workers who raise such concerns enhanced statutory protections and will override any confidentiality clause in a settlement agreement that might otherwise restrict disclosure of sexual harassment allegations.

Heightened Duty to Prevent Sexual Harassment

The preventative duty introduced in October 2024 required employers to take "reasonable steps" to prevent sexual harassment. From October 2026, the Act raises that threshold to require all reasonable steps to be taken by employers. This aligns the preventative duty with the existing statutory defence to vicarious liability under the Equality Act 2010, under which employers must demonstrate they took "all reasonable steps" to prevent unlawful conduct by employees. The government's stated intention is to remove the discrepancy between the two standards and reduce uncertainty for employers.

An employer seeking to demonstrate compliance must both take the steps specified in the regulations (which are expected to be put in place in 2027) and take all other preventative steps reasonable in the circumstances. Specified steps are expected to include conducting risk assessments, publishing relevant policies or plans, establishing reporting mechanisms, and implementing complaints-handling procedures.

Third Party Harassment

From October 2026, the Act reintroduces employer liability for third party harassment, a provision that had previously been repealed. A "third party" is anyone who is not the employer or one of its employees, which captures a broad range of individuals, and could include customers, clients, contractors, service users, guests, delegates at a conference, and members of the public. Importantly, this new liability applies to all forms of harassment, not only sexual harassment, and creates a direct, independent right of action against employers. An employer will be liable where the harassment occurs in the course of the individual's employment and the employer fails to take all reasonable steps to prevent it.

Misuse of NDAs and Excepted Agreements

A separate provision under the Act, expected to come into force in 2027, will void any clause in any agreement between an employer and a worker (not limited to employment contracts) that seeks to prevent the worker from making allegations or disclosures about harassment, discrimination, or the employer's handling of such matters. The Secretary of State will have power to designate certain "excepted" agreements, although the scope of any exemptions remains unclear and further government guidance is expected.

The government has opened a consultation (closing 8 July 2026) on draft regulations governing the use of non-disclosure agreements in cases of workplace harassment or discrimination, seeking views on the conditions for any excepted agreements. The consultation proposes six core safeguards that an NDA must satisfy in order to remain enforceable.

First, before signing, the worker must receive independent written advice from a relevant independent adviser explaining the agreement's terms, effect, and legal limitations. Second, after receiving that advice, the worker must confirm in writing that they wish to enter into the agreement. Third, a mandatory 14-day cooling-off period must apply, during which the worker may withdraw without penalty; the consultation invites views on whether this period should be shorter or capable of being waived by the worker. Fourth, a copy of the signed agreement must be provided to all parties in writing and in an accessible format, and the government is also considering whether plain-language drafting should be required. Fifth, the agreement may cover only harassment or discrimination that has already occurred, meaning pre-dispute NDAs will not qualify as excepted agreements. Sixth, any confidentiality obligation must be time-limited and subject to a statutory maximum duration.

Even where a valid excepted agreement is in place, workers will retain the right to blow the whistle by way of a protected disclosure and to report criminal conduct. Beyond this, the consultation proposes that workers should also be able to disclose relevant harassment or discrimination to a defined list of individuals and bodies for the purpose of obtaining advice or support. The consultation also explores whether disclosures to prospective employers should be permitted.

The consultation is further seeking views on whether protection should be extended to additional categories beyond "workers", including agency workers and secondees, work-experience interns and trainees, student nurses and midwives, certain NHS professionals, and vulnerable groups of self-employed individuals.

Recommended Actions for Employers

Employers should take the following steps to prepare for these changes.

Review policies. Harassment policies — and any standalone sexual harassment policies — should be updated to reflect the new obligations, including the heightened standard and third party liability.

Conduct or update risk assessments. A thorough risk assessment is fundamental to compliance with the preventative duty. The assessment should identify risks, evaluate controls, and set out preventative steps. Employers who do not yet have a risk assessment in place should prioritise this. Those with existing assessments should revisit them in light of the expanded obligations.

Implement ongoing training. An appropriate workplace behaviours training programme should be in place for all staff on a continuous basis. More detailed training should be considered for HR teams and managers.

Develop an investigations protocol. Employers should consider drafting a tailored sexual harassment investigations protocol, informed by EHRC and ACAS guidance and general best practice principles, to enable an efficient and compliant response to allegations.

Monitor further developments. Future government consultations — including on non-disclosure agreements and the scope of excepted agreements — should be tracked closely. The requirements for a potential "excepted agreement" would likely require material changes to standard settlement agreement templates and procedures.