In our fourth episode, Olivia Baxendale, Knowledge Development Lawyer, interviews Amy Barlow, Senior Associate, and Alice Peet, Associate, on the workplace equality reforms taking shape under the Employment Rights Act 2025 (the “Act”). Covering harassment and NDA reforms, as well as wider equality developments, the discussion highlights the increasing focus on prevention, transparency and workplace culture.
A Higher Bar for Preventing Sexual Harassment
Since October 2024, employers have been required to take reasonable steps to prevent sexual harassment in the workplace. From 30 October 2026, the duty is upgraded to all reasonable steps to prevent sexual harassment. While the change may appear minor, it represents a significant shift in practice. Currently, employers need to show that they took some reasonable action, but under the enhanced duty, the question becomes whether there were further reasonable preventative measures available to the employer that should have been taken. Existing guidance and case law are likely to become increasingly important in assessing compliance.
Guidance Is Coming, But Not Yet
The government has committed to introducing regulations setting out what amounts to reasonable steps to prevent sexual harassment. However, these regulations are only expected following consultation in 2027/28, leaving employers subject to the enhanced duty before additional guidance becomes available. In the meantime, employers should look to examples referenced in the Act, including risk assessments, anti-harassment policies and effective reporting mechanisms, and refer to the existing EHRC guidance and eight-step framework as a useful reference point.
Third-Party Harassment Returns
From 30 October 2026, employers will also become directly liable for harassment of their employees by customers, clients, suppliers, contractors, members of the public and other third parties. The new protection applies to all protected characteristics, not just sexual harassment. A single incident may be sufficient to give rise to liability if an employer cannot demonstrate that appropriate preventative measures were in place. For many organisations, this means extending harassment prevention measures beyond employees and ensuring third parties are aware of expected standards of behaviour.
NDA Reform: A Significant Cultural Shift
The Act also introduces significant restrictions on the use of non-disclosure agreements (NDAs) in relation to workplace harassment and discrimination. Expected to take effect in 2027, the reforms will void provisions in certain NDAs that prevent workers from speaking up about relevant harassment or discrimination, or about how their employer responded to it.
A Broad Range of Agreements Could Be Affected
The proposed reforms potentially affect employment contracts, settlement agreements, COT3 agreements and standalone confidentiality agreements. The Act contains an “excepted agreement” framework which would allow NDAs if they satisfy certain conditions, to be set out in regulations. The government recently consulted on the regulations. Proposals under consideration in the consultation include mandatory independent legal advice, a 14-day cooling-off period and written confirmation from the individual that they wish to enter into the NDA. These requirements could materially affect how employers approach settlement discussions and workplace disputes.
How Employers Should Prepare
Although some of the key details are still subject to consultation and further regulations, employers can begin preparing now by:
- Refreshing harassment risk assessments and ensuring they are tailored to the workplace.
- Reviewing anti-harassment policies and reporting procedures.
- Delivering practical, role-specific and targeted training, particularly for managers.
- Assessing how third-party harassment risks are identified and managed.
- Reviewing NDA wording across employment contracts and settlement documentation.
- Maintaining clear evidence of preventative measures, training and investigations.
The Wider Equality Agenda
The above reforms form part of the government’s broader workplace equality programme. From Spring 2027, large employers will be required to publish equality action plans aimed at reducing gender pay gaps and supporting employees experiencing menopause. In addition, the government is consulting on wider equal pay and pay discrimination reforms, discussed in our recent article.
Conclusion
The direction of travel is clear. The government’s focus extends beyond responding to workplace issues after they arise and is increasingly centred on prevention, accountability and culture. Employers that take proactive steps now to strengthen policies, training and governance will be better placed to meet the enhanced standards and manage risk as the reforms take effect.
For further information, please contact:
Olivia Baxendale, Partner, Bird & Bird
olivia.baxendale@twobirds.com
