Discrimination and harassment changes: NDAs and protected disclosures

The Employment Rights Act 2025 (ERA 2025) introduces significant changes to how employers deal with workplace discrimination and harassment. These reforms form part of a wider shift towards greater protection for workers and increased transparency in how concerns are handled. 

Below we outline the key measures and impact for employers on two key ERA 2025 changes: 

• the proposed ban on Non-Disclosure Agreements (NDAs) in harassment and discrimination cases, which is currently under consultation and is expected to take effect in 2027; and
• the new rules which define sexual harassment as a protected disclosure, which came into force on 6 April 2026. 

NDA changes: overview 

Once in force, the changes under the ERA 2025 will render void any confidentiality provisions in agreements between employers and workers to the extent that they prevent workers from speaking up about “relevant harassment or discrimination”, or about how their employer responded to it. 

The legislation allows for NDAs to remain enforceable in harassment and discrimination cases where they meet specific conditions, to be set out in regulations. Agreements that meet those conditions are referred to in the legislation as “excepted agreements”.

On 15 April 2026, the Government published a consultation on those regulations. The consultation focuses on:

• The conditions an NDA would need to meet to qualify as an “excepted agreement”;
• Who workers must still be able to speak to (i.e. “permitted disclosures”), regardless of any confidentiality terms; and
• Whether the regime should be extended to cover individuals beyond the current statutory definition of “worker”.

What NDAs will be restricted?

The ERA 2025 will render void any provision within any agreement made between an employer and a worker that seeks to prevent the worker from speaking out about (i) “relevant harassment or discrimination” or (ii) their employer’s response to that harassment or discrimination, including the making of any allegation. 

"Harassment or discrimination" is defined by reference to the Equality Act 2010 and includes direct and indirect discrimination, disability-related discrimination, gender reassignment discrimination, pregnancy and maternity discrimination, and harassment (including sexual harassment).

For the conduct to be “relevant” it must have been carried out (or alleged to have been carried out) by the employer or a fellow worker or the individual bound by the NDA must be the affected worker or their colleague. Critically, this means the provisions do extend to third-party harassment – for example, harassment a worker suffers at the hands of a client or customer.

This change is expected to come into effect in 2027 and will not apply retrospectively. The Government has confirmed that the scope of the restriction is intended to be broad. It will cover any confidentiality clause in an agreement between an employer and a worker, including non-disclosure, non-derogatory and non-disparagement clauses. 

When can NDAs still be used? 

The Government has been clear that this is not a blanket ban on all confidentiality provisions. NDAs will remain a legitimate and important tool where they serve a proper purpose – including protecting commercially sensitive information, trade secrets, intellectual property and other legitimate business interests.  

The Government has also expressly recognised that, in some limited circumstances involving discrimination or harassment, it may be appropriate to allow an NDA to remain valid (for example, where confidentiality is wanted by the worker). For this reason, the legislation provides a carve out for “excepted agreements” - circumstances where an NDA can still be valid even in harassment or discrimination cases, provided strict conditions are met. The proposed conditions are set out in the consultation paper and are summarised below. 

What conditions must apply for an NDA to qualify as an “excepted agreement”?

To become an excepted agreement, the consultation is considering the following measures:

• Independent legal advice: mirroring the existing settlement agreement regime, the worker must receive written independent legal advice before entering into an excepted agreement. The advice must come from a relevant independent adviser (i.e. a solicitor, independent trade union official or certified advice centre worker) and must explain the terms, effect and the legal limitations of the NDA. The adviser must be named in the agreement and must hold indemnity insurance. 
  
  As Acas COT3 agreements do not ordinarily require independent legal advice, they would not currently meet this condition. The Government has acknowledged this and is therefore consulting on whether an Acas conciliator should be treated as an “independent adviser” for these purposes, so that COT3s can remain a viable route for an excepted agreement. 
  
  The Government does not propose to require employers pay for NDA-related advice, although it recognises that paying for advice in a settlement agreement is common in practice.  
   
• Instigated in writing by the worker: After receiving independent advice, the worker must confirm in writing that they wish to enter into the excepted agreement. The intention is that an excepted agreement is only entered into with the worker’s clearly stated informed consent. Given it is commonly the case that employers propose the terms of the NDA, the consultation is exploring whether employers should be permitted to proactively suggest confidentiality at all, and if so, what safeguards would be needed to prevent pressure or coercion. Should the Government conclude from this consultation that employers cannot suggest confidentiality clauses under any circumstances, regardless of safeguards, their use will be greatly restricted.
   
• Cooling-off period: The consultation is proposing a mandatory 14-day “cooling-off” window, during which the worker would be able to withdraw from the confidentiality provisions. The consultation seeks views on:
  
  ° whether the cooling-off period should apply to the entire settlement or only to the confidentiality terms; 
  
  ° whether a shorter period (such as 7 or 10 days) would be more appropriate; and
  
  ° whether workers should be able to waive it.
  
  A mandatory cooling-off period - whether limited to the confidentiality terms or extending to the whole settlement - would introduce real uncertainty into the settlement process: payments cannot safely be made, tribunal hearings cannot confidently be vacated, and disputes both parties believed to be resolved risk being reopened. The consultation acknowledges these difficulties, particularly where agreement is reached close to a hearing, but the Government's current preference is that the period should be compulsory and non-waivable.
   
• Accessible written copy: All parties must receive a copy of the agreement in an accessible format. The consultation also explores whether NDAs should be drafted in plain-language, although the Government currently favours addressing this through guidance rather than regulations.
   
• Past conduct only: An excepted agreement may only cover conduct that has already occurred (or is alleged to have occurred). Clauses intended to pre-emptively prevent a worker from speaking about future misconduct will not qualify for the exception. This would limit the application of excepted agreements in contracts of employment and similar arrangements.
   
• Time limits on confidentiality: The consultation asks whether confidentiality obligations should be subject to an agreed term or a statutory maximum duration, drawing on comparable regimes in Canada and Ireland. If time limits are mandated, employers may need to accept that confidentiality could become a diminishing asset over time (which may affect the commercial “value” attributed to confidentiality once these restrictions come into force).  

Permitted disclosures 

Even where a valid excepted agreement is in place, workers will retain the right to make permitted disclosures to specific bodies. The consultation looks to extend the list of bodies beyond those already covered by regulatory requirements and puts many of the existing bodies/individuals on a statutory footing. The list includes law enforcement, lawyers, trade union representatives, victim support providers and close family members. 

Application to other individuals 

The new rules on NDAs apply to workers. The Government is exploring whether in future to extend these protections to other groups - such as agency workers, secondees, work experience participants, trainee nurses and midwives, and certain self-employed individuals. 

What should employers be doing?

Although the NDA reforms are still subject to consultation and are not expected to come into force until 2027, organisations may wish to start reviewing where and how NDAs are currently being used – including in employment contracts and settlement agreements – and consider whether those arrangements would remain workable under the proposed new regime. It is also worth exploring what the organisation’s appetite for settlement might be as a default in the event that confidentiality is not part of the package.

Once the final rules are confirmed, organisations should expect a need for template changes, updated processes (particularly around settlement agreements and COT3s), and training for HR and managers on when confidentiality can legitimately be used, and how it should be approached in practice.  

Employers with firm views on any of the questions - particularly around the cooling-off mechanism, whether employers should be able to suggest confidentiality, and whether confidentiality should be time-limited - may wish to submit responses to the consultation which closes on 8 July 2026, to help shape the final regime. 

Sexual harassment and whistleblowing

As of 6 April 2026, sexual harassment is expressly included as a category of wrongdoing capable of being a protected disclosure. This reform, introduced by the ERA 2025, is likely to encourage claimants to frame harassment complaints as protected disclosures, particularly where complaints are followed by dismissal or other alleged adverse treatment. 

Prior to the ERA 2025 changes, sexual harassment allegations could potentially constitute protected disclosures under one of the other categories of wrongdoing e.g. on the basis that they disclosed a breach of a legal obligation (such as compliance with the Equality Act 2010) or criminal allegations. The ERA 2025 change does not significantly lower the legal threshold; its main effect is to increase awareness - particularly for employees without legal representation - that harassment complaints can fall within the whistleblowing framework.

What is not changing

Not every complaint of sexual harassment will qualify as a protected disclosure. The change does not displace the core whistleblowing requirements. Claimants must still show:

• a disclosure of information;
• a reasonable belief that the information tends to show wrongdoing; and
• that the disclosure is made in the public interest.

Complaints are more likely to attract whistleblowing protection where they expose systemic issues - such as inadequate preventative measures, ineffective reporting or investigation processes, or tolerance of known risks within the workplace - rather than entirely individual mistreatment.

Practical implications

The change is likely to result in more employees raising sexual harassment complaints under an employer’s whistleblowing policy. Employers should consider how complaints relating to sexual harassment will be triaged, and act now to review and update their whistleblowing, grievance and anti-harassment policies and procedures. 

A new avenue for interim relief

One consequence of harassment complaints being advanced under the whistleblowing regime is a potential uptick in applications for interim relief. This remedy is only available in very limited circumstances, including claims of automatic unfair dismissal on whistleblowing grounds; it is not available in stand-alone sexual harassment or discrimination claims under the Equality Act 2010. It is typically used by claimants to exert pressure on employers to enter into early settlement discussions. As awareness of the whistleblowing route grows, we may well see a corresponding rise in interim relief applications.

Horizon scanning: reasonable steps and third-party harassment 

As we explained above, the updated whistleblowing rules are part of broader laws that enhance employee protection. Other measures relating to harassment include:

Duty to prevent: as of October 2026, the duty to take reasonable steps to prevent sexual harassment will increase to one of all reasonable steps. New regulations will be published setting out what constitutes all reasonable steps in this context, but unhelpfully, these are not expected until 2027 i.e. after the new duty comes into effect.

Third party harassment: the ERA 2025 also (re)introduces employer liability for third‑party harassment, with effect from October 2026. This is likely to be one of the most onerous of the new obligations on employers; unlike the previous third-party harassment regime, there is no “three strikes” rule, meaning employers could be liable following an isolated incident involving harassment of one of their workers by a third party in the course of employment. Furthermore, unlike the other changes in this area, the third-party harassment rules will apply to all types of harassment, not just sexual harassment.

Key takeaways 

These developments demonstrate an increased focus on preventing harassment (and particularly sexual harassment) and set a higher bar for employers in this area. Employers should ensure their policies and procedures reflect the changes to the whistleblowing regime that came into effect on 6 April, and be ready to update their internal training, confidentiality clauses and third-party contracts to reflect the changes coming later down the line.

Both reforms signal a broader move towards greater transparency and create a stronger obligation on employers to investigate thoroughly and take early action. Once the NDA changes are in force, resolving harassment or discrimination claims through settlement agreements may be a risky option and no longer provide the expected level of protection, if employees are able to speak openly about their experiences.

Article co-authored by Laura Whyte, Associate.