Employment update: enhanced protection from harassment requires board engagement

Sexual harassment disclosures protected  

The ERA 2025 has added disclosure of a concern about sexual harassment to the list of wrongdoings that potentially amount to a protected disclosure for the purposes of whistleblowing protection. This provision came into force on 6 April 2026.

To qualify for whistleblower protection a worker must reasonably believe their disclosure is in the public interest and tends to show a relevant type of wrongdoing.

Previously, a disclosure about sexual harassment might have qualified as a protected disclosure, for example if the harassment would constitute a criminal offence, failure to comply with a legal obligation, or a health and safety issue. Express protection now simplifies the position for workers raising such concerns, while improved awareness may increase the risk of claims.

From a reputational perspective, directors should also note that contractual confidentiality terms preventing protected disclosures are void. Sexual harassment disclosures meeting the other requirements of a protected disclosure are thus effectively excluded from the scope of confidentiality provisions, including in settlement agreements. The ERA 2025 will further restrict non-disclosure agreements (NDAs) concerning discrimination and harassment (see below). 

Requirement to prevent third party harassment 

From 30 October 2026 all employers will be required to prevent third party harassment of employees. This will cover all types of harassment under the Equality Act 2010 (i.e. relating to age, disability, gender reassignment, race, religion, or belief, sex and sexual orientation).

The employer will be liable if: 

• A third party harasses an employee in the course of their employment with the employer

• The employer failed to take all reasonable steps to prevent the third party from doing so

The employer needn't have had knowledge of the harassment, and a single incident could trigger liability, making this an onerous duty. Employers' limited control or visibility over third parties such as suppliers and customers increases the risk. Directors should ensure the business takes active measures to manage such risk, e.g. including anti-harassment clauses in supplier contracts, and displaying notices in public areas of the workplace stating that harassment of staff will not be tolerated, whilst also encouraging all workers to raise concerns about any third party harassment as well so that active steps can be taken such as banning people from premises or terminating any third party relationship.

Strengthened duty to prevent sexual harassment 

Since October 2024, employers have been under a duty to take "reasonable steps" to prevent sexual harassment of their workers, shifting the emphasis from enforcing rights to proactive prevention. Non-compliance does not create a standalone claim, but can lead to a 25% uplift in (uncapped) compensation where a worker succeeds in a sexual harassment claim. The Equality and Human Rights Commission (EHRC) may also investigate suspected non-compliance and take enforcement action.

Under the ERA 2025, employers will be required to take "all reasonable steps", as opposed to just "reasonable steps" to prevent sexual harassment at work. This may make compliance significantly more difficult, and sexual harassment claims harder to defend. Businesses may also suffer reputational damage if alleged breaches attract media interest. 

The government has promised regulations giving examples of reasonable steps. However, although the enhanced preventative duty and the power to make such regulations will take effect on 30 October 2026, the regulations themselves are not expected until later, possibly April or October 2027. Employers will therefore face a significant period without the benefit of regulations identifying reasonable steps. 

In the meantime, without concrete guidance on what compliance with the enhanced preventative duty will require, businesses should review and update their existing risk assessments on sexual and other types of harassment to identify potential areas of concern. Where incidents have been reported, these must be properly followed up, with appropriate measures identified and implemented to prevent recurrence. 

Ban on NDAs concerning discrimination and harassment 

The ERA 2025 will effectively ban NDAs that concern discrimination and harassment, by making void any contractual term that seeks to prevent a worker from alleging or disclosing information about any relevant harassment or discrimination, or their employer's response to the harassment or discrimination or the making of the allegation.

This will cover all types of harassment and discrimination under the Equality Act 2010, where a worker witnesses discrimination or harassment committed by the employer or a colleague, or where the worker or a colleague is the victim of discrimination or harassment regardless of the perpetrator's identity. 

NDAs concerning harassment and discrimination will be permitted if they meet certain strict conditions, to be set out in regulations. The government recently consulted on the safeguards to which these so-called "excepted agreements" should be subject, proposing that: 

• The worker would have to receive written legal advice from a "relevant independent adviser" 

• Having received independent legal advice, the worker would have to express their preference in writing to enter into an excepted agreement 

• Excepted agreements should include a mandatory 14 calendar day cooling off period, during which the worker could withdraw without penalty, although this may cause difficulty where the excepted agreement forms part of a broader settlement, and make settling claims in the run-up to a tribunal hearing challenging 

• Once concluded, an excepted agreement would have to be provided to all parties in writing, in a format accessible to them

• Only past incidents of relevant harassment or discrimination could be covered, with workers still able to speak out about harassment and discrimination that may occur in the future 

• Excepted agreements should be time limited to reduce the chance that perpetrators of discrimination and harassment can remain hidden and continue their harmful behaviour 

Even where an excepted agreement is in place, the consultation proposes permitting certain disclosures, e.g. to law enforcement agencies, qualified lawyers, healthcare professionals, etc. as well as close family members. This would be in addition to the current exceptions which apply to all NDAs: whistleblowing, reporting a crime to the police, and victims of crime seeking support from specified individuals under the Victims and Prisoners Act 2024. 

Regulations bringing the ban into force and prescribing conditions for excepted agreements are expected in 2027. Organisations will need to amend template settlement agreements and employment contracts once details are available.

Conclusion: engagement at board level is essential 

Together, these provisions materially increase the litigation and reputational risks that may arise from poor practices. Directors must therefore ensure cultural change is embedded throughout the organisation. Poor behaviour by leaders is a particular concern for the EHRC. Accordingly, leading compliance efforts from the top, and making clear that senior leaders are subject to the same behavioural standards as everyone else will help businesses stay on the front foot.