UK Employment Rights Bill: What Employers Must Know About NDA Restrictions and Different Adjustments to Harassment Legal guidelines

The UK Employment Rights Bill (ERB) is making its approach by Parliament and is about to move this autumn. It will make main modifications to employment legislation as a part of the Government’s phased Plan to Make Work Pay (see our Reform Hub right here for additional particulars).

This contains some vital modifications for employers in respect of harassment, sexual harassment and using Non-Disclosure Agreements (NDAs).

We discover these modifications in larger element under, and what impression we anticipate they are going to have on employers.

1. Heightened Duties to Prevent Harassment

a) Sexual Harassment

Under the Worker Protection (Amendment of Equality Act 2010) Act 2023 (“Worker Protection Act”), which got here into drive on October 26, 2024, employers are already below an obligation to take “reasonable steps” to stop sexual harassment of their staff in the midst of their employment. The phrases employment (and staff) have broad which means below the Equality Act 2010, together with, for instance, employees. The present obligation isn’t restricted to sexual harassment by colleagues or managers, as employers even have an obligation to take cheap steps to stop sexual harassment by third events (together with by contractors, shoppers, or guests). Guidance from the Equality and Human Rights Commission (EHRC) stresses the significance of employers’ being proactive. EHRC considers that “an employer is unlikely to be able to comply with the preventative duty unless they carry out a risk assessment.” Employers discovered to have breached this obligation can face EHRC enforcement motion and, if a harassment declare is profitable, any compensation awarded could also be elevated by as much as 25%.

However, the ERB proposes to broaden this new obligation additional and would require employers to take “all reasonable steps” (not simply cheap steps) to stop sexual harassment. The Government anticipates that this transformation will take impact in October 2026. It may also have the facility to introduce laws specifying what steps are to be considered “reasonable” for the aim of figuring out whether or not an employer has complied with this obligation (that energy is predicted to come back into drive in 2027). 

b) Third Party Harassment – On the Basis of Relevant Protected Characteristics

Another change at present scheduled for implementation in October 2026 is the (re)introduction of provisions regarding third celebration harassment. The ERB will insert new obligations into the Equality Act 2010 in order that an employer should not allow a 3rd celebration (e.g., shoppers, suppliers, recruiters) to harass its staff in the midst of their employment. Harassment on this context refers to normal harassment and is due to this fact not restricted to sexual harassment; normal harassment includes undesirable conduct referring to a “relevant” protected attribute (i.e., all protected traits besides marriage and civil partnership, being pregnant and maternity) that has the aim or impact of violating the worker’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive setting for the worker. An employer won’t be seen as allowing such behaviour the place it has taken “all reasonable steps” to stop the third celebration from harassing its staff in the midst of their employment.

Provisions searching for to introduce third celebration harassment had been beforehand dropped from the Worker Protection (Amendment of Equality Act 2010) Bill throughout its passage by Parliament below the previous Conservative Government, following Parliamentary debate about a few of the sensible difficulties that this obligation may pose for employers.

Impact

What will represent “all reasonable steps” for each the obligation to stop sexual harassment and the brand new broad third celebration harassment provisions stays to be seen, although the sensible implications are clear: this can be a excessive bar and enterprise danger assessments to know the actual dangers in an employer’s office, and what steps may be taken to stop these dangers (together with common critiques of insurance policies and coaching programmes), shall be important to managing these dangers.

2. New Restrictions on NDAs that Prevent Workers from Making Allegations or Disclosures of Discrimination or Harassment

In a late-stage modification to the ERB, the Government is introducing new guidelines that may make any provision in an settlement between an employer and a employee void in as far as it tries to stop employees from making an allegation or disclosure of knowledge referring to related harassment or discrimination together with allegations or disclosures referring to an employers’ response to such allegation/disclosure.

However, the ERB reserves powers to the Government to exempt sure agreements from these guidelines and to increase the definition of “worker” for these functions. We have written in additional element about this in our article and our Reform Hub.

Impact

The Government impact assessment states that, in the end, laws will set out the (strict) exemptions to those guidelines, however states that the intention is to make sure that employees will nonetheless have the ability to request NDAs. As such, the impression evaluation means that the choice for confidentiality would stay, which can protect some incentive to succeed in a settlement – however it additionally explains that the proposed change will shift management over NDAs to the employee, doubtlessly strengthening their bargaining place in order that confidentiality will develop into a “benefit” versus a “condition imposed on them.”

 

In addition, the identical impression evaluation states that the intention is just to void the a part of a contractual provision that seeks to stop such allegations or disclosure, and so the remainder of the availability would stand. NDAs, notably to guard industrial and confidential info, or these requested by the employee, would due to this fact nonetheless have a spot.

 

Given that this can be a late-stage modification, this was not referenced within the Government’s implementation roadmap, so readability on timing is required. During its newest consideration of the ERB on September 15, 2025, the Government described this transformation as a “priority” and confirmed that it is going to be “moving as fast as possible to consult on the related secondary legislation and commence the measure,” however it couldn’t but provide any additional perception on timing.

 

In any occasion, employers ought to look ahead to developments on this area and contemplate reviewing their phrases and practices round non-disclosure provisions, together with in settlement agreements.

 

Employers needs to be conscious that the above proposed modifications are separate from and along with the brand new restrictions from October 1, 2025 on NDAs below the Victims and Prisoners Act 2024 (see our update).

3. Whistleblowing Protections – Sexual Harassment and Protected Disclosures

Under the ERB proposals, the place a employee raises issues that “sexual harassment has occurred, is occurringo r is likely to occur,” this will quantity to creating a protected disclosure and thereby qualify for whistleblowing protections (offered the opposite authorized necessities for such protections are met). The key whistleblowing protections are that (a) a employee has a proper to not be subjected to a detriment (e.g., being rejected for a promotion / handled unfairly) on account of making a protected disclosure, and (b) an worker is robotically unfairly dismissed if the explanation or principal purpose for the dismissal is that they made a protected disclosure (thereby enabling the worker to say uncapped compensation in an Employment Tribunal).

Impact

This modification has been included following in depth lobbying from worker and whistleblower safety teams. However, for a person to profit from this safety, a claimant should have the ability to show that the matter that they’ve raised is “in the public interest” (a comparatively excessive threshold and one which may be onerous to show in some circumstances). In follow, due to this fact, we anticipate that people might as an alternative carry claims below the prevailing harassment and anti-discrimination framework, which already comprises protections in opposition to victimisation at work for elevating a grievance of sexual harassment below the Equality Act 2010.

Implications for Employers

These modifications may have the next implications for workers:

• Closer scrutiny on worker behaviour. Employers shall be below extra proactive duties in relation to worker misbehaviour, that are unlikely to be adequately addressed by coverage alone. To assist meet these obligations, sturdy danger assessments, strengthened procedures (notably in relation to investigations), along with efficient coaching programmes will type key elements of the proactive steps employers will need to contemplate taking to show compliance with these duties.
• Risk of elevated litigation and reputational harm. Allegations about discrimination and/or harassment are sometimes complicated and extremely reality particular, with the energy of such allegations depending on every case. Pursuing litigation to find out the result to any such claims may be prolonged, pricey and annoying for all concerned. Reaching a industrial settlement, together with NDAs as a part of the industrial deal, may be engaging to each side for instance to allow a clear break in trade for compensation. The proposed modifications may imply {that a} industrial settlement could also be a much less engaging possibility for employers if an worker is free to speak in regards to the allegations or settlement after signing notably, for instance, the place an employer might really feel allegations are unsubstantiated or the place they want to defend their place. This may result in extra claims being examined within the Employment Tribunal. Alongside this, there could also be an elevated danger of adverse publicity if extra circumstances are performed out in public boards, doubtlessly exposing employers to reputational hurt whatever the consequence of the actual case in a tribunal. It stays to be seen what flexibility shall be granted in respect of the brand new prohibition on NDAs. Such exceptions may embody the place an NDA is requested by the worker (which is anticipated by the impression evaluation) or maybe the place entry into an NDA is topic to sure particular procedural safeguards. Following the Government’s newest consideration of the ERB, we are able to anticipate the circumstances for excepted NDAs to be the topic of additional session. Any such exceptions will probably decide the extent of the impacts set out above in follow.
• Risk assessments. Many employers are already enterprise danger assessments in respect of the brand new obligation to take cheap steps to stop sexual harassment. Monitoring and reviewing them on an ongoing foundation will stand employers in good stead to make sure each compliance with this obligation (together with when it’s expanded to taking “all cheap steps”) and in demonstrating that it has taken all cheap steps to stop third celebration harassment. Such danger assessments can also assist present a great basis to construct on when eager about additional steps employers may take inside this altering authorized panorama (and to show that they’ve taken these steps) and in respect of any explicit regulatory necessities.
• Policy and settlement critiques. Employers might want to begin reviewing their present template settlement agreements and different confidentiality clauses, together with the procedures round their use in follow, to arrange for the NDA restrictions.

Should you require any help in relation to this, together with assist with finishing up your danger evaluation, please contact your typical Littler United Kingdom contact. We additionally present a collection of coaching together with on the Employment Rights Bill and the brand new obligation to stop sexual harassment.