The UK Employment Rights Act: equality and harassment duties

The Employment Rights Act (“Act”) received Royal Assent on 18 December 2025 and the government plans a staged implementation over 2026 and 2027.

The Act includes 28 employment reforms and, cumulatively, the scale, breadth and complexity of the changes are significant for employers (read our tracker to keep abreast of developments across the Act and timescales for implementation).

To support employers as they respond to the Act’s measures, our more detailed briefings focus on specific topics within the Act and include the latest developments and practical implications. In this briefing, we review its diversity provisions, including significant changes to harassment law and a new requirement that larger employers publish equality action plans. 

The Act is not alone in introducing diversity changes. Measures relating to ethnicity and disability reporting, equal pay rights and more will be delivered through the Equality (Race and Disability) Bill, not yet published (read our update on the consultation and our update on the call for evidence).

For our briefings focusing on the Act’s changes to:

• trade union and collective rights, read our update
• dismissal and re-engagement (“fire and rehire”), read our update
• family-friendly rights and SSP, read our update
• collective redundancies, read our update
• enforcement, read our update
• zero and low hours contract workers, read our update
• unfair dismissal, read our update

Harassment changes

Measures to strengthen harassment protections came into force in October 2024, including a proactive duty on employers to take “reasonable steps” to prevent sexual harassment of their employees (read our update). Further changes are included in the Act, including:

• employers will be required to take “all” reasonable steps to prevent workplace sexual harassment, to take effect in October 2026
• third party harassment liability will be introduced (whether related to sex or any other protected characteristic), also to take effect in October 2026
• disclosure of sexual harassment will be explicitly included under whistleblowing legislation, to take effect on 6 April 2026
• most provisions in an agreement (e.g. NDA) to prevent workers making allegations or disclosures relating to certain discrimination and harassment will be void  (implementation date unknown)

Employers should also be aware that the government is considering whether sexual harassment protections should be extended to volunteers (read our update on the call for evidence).

What does the Act say?

Harassment: “all” reasonable steps

By adding the word “all” to the employer’s duty (i.e. take “all” reasonable steps to prevent sexual harassment of employees), the government’s intention is to strengthen the duty. It intends that the amended provision will mirror the existing concept of the “all reasonable steps” defence in the Equality Act 2010 (“Act”).

However, the Act does not currently state which steps are reasonable for an employer to take. To address this gap, the Act provides for future regulations to specify reasonable steps which an employer must take, and matters to which they must have regard, to prevent sexual harassment. The government has sought evidence on what steps are effective in reducing or preventing sexual harassment before it enacts such regulations. Somewhat confusingly, it has indicated that they may not be introduced before 2027, after the duty has been implemented. 

Assuming the regulations are enacted, an employer will have taken “all” reasonable steps where:

• it takes the steps set out in the regulations, as well as
• all other preventative steps that it is reasonable to take in the particular circumstances

Examples of steps which may, according to the government, be included in the regulations comprise: carrying out assessments; publishing policies or plans; and steps relating to the reporting and handling of complaints. It is expected to consult before regulations are introduced. This consultation will be important for employers to review as it should include more detail beyond these outline examples.

The EHRC’s existing technical guidance provides advice on the types of actions employers can take to prevent and respond to workplace harassment, including its Employer 8-step guide. It is expected to be further updated in advance of the strengthened preventative duty being implemented.

Harassment: third party harassment

Currently, there is no stand-alone employer liability for workplace harassment by a third party, such as a customer, client or contractor. However, the current duty to take reasonable steps to prevent sexual harassment of employees (discussed above) could extend to taking steps to prevent sexual harassment by third parties. This is reflected in the Equality and Human Rights Commission’s existing guidance, which includes references to third party harassment. 

The Act changes this status quo by introducing employer liability in relation to all protected characteristics (not just sexual harassment) if:

• a third party harasses an employee in the course of their employment
• the employer failed to take all reasonable steps to prevent this happening

Employer bodies have raised concerns, including:

• third party liability may apply in situations where employers have less control
• it is unclear how employers should balance the prevention of third party harassment and rights to freedom of expression. For example, where an employee complains of harassment after overhearing a customer expressing a political or religious opinion

The government rejected these concerns, stating that:

• third party conduct that is trivial or causes minor offence will not trigger liability
• an employee’s subjective perception that a third party’s conduct is offensive is not enough (reasonableness is part of the test for harassment)
• employers will not be penalised for failing to anticipate the wholly unforeseeable
• reasonable steps, in respect of the actions of third parties, are “clearly more limited than the steps they can take in respect of their employees”. It gives the example of an employer needing to consider the nature of any contact with third parties, including the type of third party, frequency, and environment
• any interference with the right to freedom of expression must be necessary and proportionate

It is currently unclear whether the government will provide examples of such reasonable steps in regulations, as it will do for sexual harassment, above.

Harassment: whistleblowing

The Act provides that a protected disclosure can include an employee reporting sexual harassment, meaning that they may benefit from the additional protections, including from detriment and dismissal, under the whistleblowing legislation. They would still need to comply with the other requirements in the legislation, including meeting the public interest test. 

Such complaints may already be protected disclosures under existing law and it appears that the government’s aim is to raise awareness.

Harassment and discrimination: NDAs and confidentiality

The Act will make any provision in an agreement between an employer and a worker void if it seeks to prevent the worker from making allegations or disclosures of information relating to certain work-related discrimination and harassment. For example, alleged discrimination or harassment relating to the employer’s, or another worker’s, conduct, or, where the alleged victim is the worker, or a colleague (such as a witness). According to the government, this could include: harassment that a worker witnesses their employer carry out against a customer; or harassment the worker suffers at the hands of the employer’s client.

However, this change will not apply to certain excepted agreements that meet conditions. Further regulations will detail these exceptions. In a 2026 consultation, the government proposed that an NDA may be used if the worker wants confidentiality and receives independent written legal advice, gives informed written consent, and has a 14 day cooling off period. The government is considering whether employers should be allowed to suggest confidentiality and whether the cooling off period should be changed or waived. Further proposals include: NDAs covering past incidents only; plain language drafting; and possible time limits on confidentiality.

Even where the above conditions are satisfied, and the NDA is valid, workers will still be able to disclose information, as is the current situation (for example, to report a crime and to make a protected disclosure). These situations may be extended further, according to the consultation, and the scope of workers currently protected also extended. 

Harassment changes: practical implications for employers?

Employers must already take reasonable steps to prevent sexual harassment of their employees in the course of employment. According to the government, the Act’s “all” reasonable steps preventative duty “emphasises the thorough approach” employers must take to avoid liability and a potential 25% uplift in compensation where a successful claim for sexual harassment is brought. Employers should continue to be proactive in preventing and tackling sexual harassment under the current law, to be better prepared for the strengthened duty being implemented. 

All employers will be affected by the introduction of third party harassment liability. However, it will be particularly relevant in some sectors, such as hospitality and service sectors, and in certain roles where there is a higher interaction with contractors, suppliers, customers and members of the public. Many employers will already be taking third party preventative steps, including harassment clauses in supplier contracts and displaying public notices (e.g. that harassment of employees will not be tolerated). Ensuring that reporting is encouraged, and reports investigated promptly and seriously with corrective action being taken, will help lay the foundations for the Act’s changes, when implemented. 

The voiding of most confidentiality clauses, in effect a ban, is significant. As well as ensuring that they are taking proactive steps to prevent workplace harassment, as highlighted above, employers should carefully review their contracts of employment, settlement and other agreements, and consider how this will affect their approach to defending or settling any such claims, once in force. This will also be relevant to the operation of policies during employment such as grievance and/or disciplinary investigations into allegations of discrimination and harassment.

Other diversity changes in the Act

Equality action plans

Some employers are already required to publish gender pay gap data (with action plans encouraged but voluntary) on a publicly available government website. The duty is extended by the Act.

Regulations will be made to require large employers (those in the private sector with 250 employees or more, together with specified large public authority employers) to develop and publish an equality action plan showing the steps that they are taking in relation to gender (and, in due course, ethnicity and disability) equality. For gender equality, this will include steps addressing the gender pay gap and supporting employees going through the menopause and will take effect in 2027 (although introduced on a voluntary basis in April 2026). It is expected to be an annual reporting duty and enforcement measures may also be included in the regulations. Guidance, including a list of recommended actions, was published in spring 2026 for gender equality action plans. The government has committed to prepare separate guidance on the types of actions that are effective in tackling ethnicity and disability pay gaps, and also consider what other practical support it can provide to employers to help them act on their data and create meaningful change. 

Equal pay and outsourced workers

Reflecting government concerns that outsourced services may allow some employers to avoid equal pay obligations, regulations will require organisations to name the providers they contract with for outsourced workers. The duty applies to employers falling within scope of gender pay gap reporting and it will form part of their annual disclosure. Full details are to follow, including definitions and parameters of the reporting duty. In addition, the 2025 call for evidence (read our update) explored whether to change the law to enable equal pay claims to be brought by outsourced workers, by comparing themselves to ‘in house’ employees.

The government has stated that implementation will be dependent on timelines for broader changes to pay gap reporting, including related measures in the draft Equality (Race & Disability) Act.

Other diversity changes: practical implications for employers?

The government has committed to providing employers with evidence-based guidance on effective steps to take when preparing their equality action plans. It has also confirmed that it will be introducing mandatory ethnicity and disability pay gap reporting for large employers (see our briefing: Ethnicity and disability pay gap reporting coming soon). 

In the meantime, workplaces should be taking steps to support employees experiencing menopause and to properly understand their gender, ethnicity and disability pay practices, including establishing the causes of any significant pay differences, assessing justification and establishing a plan to address any differences that cannot be justified on non-discriminatory grounds. Allowing enough time to plan will enable more targeted action to bring about change.

In relation to publishing outsourcing provider information, employers should note the reputational risks where pay gaps exist. For example, between the employer’s own workforce and its contractors. The government’s aim is to “motivate [employers] to support efforts to improve gender equality in organisations they are linked to”.

Originally published: December 17, 2025