ERA reforms in depth: Protection against harassment and NDAs

The third-party harassment provisions and the amendment to the duty to prevent sexual harassment (read more about the existing duty here) to require employers to take ‘all’ reasonable steps are both set to come into force in October 2026.

We do not know when the NDA and confidentiality clause reform will come into force as this reform was not mentioned in the government’s implementation roadmap.

Current position

Since October 2024, employers have been under a proactive duty to take reasonable steps to prevent sexual harassment of their workers in the course of their employment. A failure to do so can lead to an uplift of up to 25% to compensation awarded where a sexual harassment claim succeeds. Although the duty also requires employers to take steps to prevent sexual harassment by third parties (and the EHRC could take enforcement action for a failure to do so), workers cannot currently bring a standalone claim.

The ethics of NDAs and confidentiality clauses have been the topic of debate for many years now, particularly in the wake of the #MeToo movement which highlighted some high-profile examples of NDAs being used to silence victims of sexual harassment and misconduct. Since then, regulators and legislators alike have implemented various measures to combat these concerns. These measures include rules (which are separate to those in the Employment Rights Act) that from 1 October 2025 made NDAs and confidentiality clauses void where they prevent victims from reporting criminal conduct or making certain other types of disclosures regarding such conduct. We provide more details about those measures here.

Since 2018, solicitors have also been subject to important regulatory rules (issued by the Solicitors Regulation Authority) which govern how solicitors should advise their clients on confidentiality and NDA provisions and set out certain types of disclosure that must not be prohibited by a confidentiality or non-disclosure clause. These permitted disclosures include reporting of offences and misconduct to the police and regulators, whistleblowing disclosures and any disclosure required by law.

Although some allegations of workplace harassment or discrimination might fall within the above prohibitions and carve-outs (for example, where it would amount to a protected disclosure), there is currently no direct ban preventing the use of non-disclosure or confidentiality clauses to restrict disclosure of allegations of harassment or discrimination.

What is changing?

The Act contains a range of different reforms relating to harassment. These are outlined below:

• The Act contains two amendments to the preventative duty to prevent sexual harassment:

1. The duty will be changed to require employers to take ‘all reasonable steps’ to prevent sexual harassment of their workers (rather than ‘reasonable steps’).
2. Regulations are expected to set out a non-exhaustive list of the ‘reasonable’ steps that an employer must take in order to comply with the preventative duty. Those steps will be a minimum and each employer will have to consider what additional steps it is reasonable for it to take. It appears that the power to set these regulations will be introduced in 2027 – it remains to be seen whether the regulations issued under that power will also come into force during that year.

• The definition of protected disclosure in whistleblowing legislation will be amended to include a disclosure that ‘sexual harassment has occurred, is occurring or is likely to occur’. A worker raising an allegation of sexual harassment will therefore be covered by whistleblowing protections preventing them from being subjected to a detriment or being dismissed as a result of raising the allegation.
• Perhaps most importantly, a new third party harassment claim will be introduced into the Equality Act, allowing workers to bring a claim against their employer where they are harassed by a third party in the course of their employment and the employer failed to take all reasonable steps to prevent the third-party harassment. This will cover all forms of harassment (not just sexual harassment), and third parties may include clients, customers, contractors, suppliers, visitors to the workplace etc.

• The Act will introduce a ban on non-disclosure and confidentiality clauses between employers and workers that purport to prevent the worker from making disclosures relating to harassment or discrimination or the employer’s response to such harassment or discrimination. This ban will cover harassment and discrimination carried out by, or importantly, alleged to have been carried out by, the employer or any worker of the employer and will extend to allegations raised by the worker about harassment or discrimination they experience themselves or their colleagues have experienced (and so protecting witnesses of harassing or discriminatory conduct). ‘Excepted agreements’ will not be subject to the ban – the government’s impact assessment suggests that this will include an option enabling the worker to request confidentiality. At this stage, it is unclear how the parties will evidence that the worker requested the confidentiality – more detail is expected in regulations.

The first changes outlined above put even greater focus on compliance with the preventative duty. Read more about the duty here. To comply with the amended duty, employers will need to take all steps that are reasonable, which is a high bar. When regulations are published which stipulate the steps that will be regarded as reasonable, employers will need to ensure that they carry out those steps as well as any additional steps that they have identified as being reasonable for their organisation.

Prevention of all forms of third-party harassment should also be a priority area for employers, particularly given the new third-party harassment claim that is set to be introduced under the Act. Employers are likely to have significantly less control over third parties than they have over their workers. We would anticipate that the bar of what constitutes ‘all reasonable steps’ would therefore be lower than it is for workers, but there will be different steps employers can take in relation to third parties, including amendments to the terms and conditions in place with its suppliers and customers.

Employers should also keep a close eye on developments relating to NDAs and confidentiality clauses. Once in force, any clause which seeks to prevent a worker from making a permitted harassment or discrimination disclosure will be void in so far as it prevents them from making that disclosure. Where it is permissible to include such clauses (for example, in an ‘excepted agreement’), the employer should take care to ensure that it evidences why an agreement qualifies as an excepted agreement.