Employment Law Coffee Break: Employment law reforms and status of job offers

New consultations, guidance and a call for evidence

The government has now published further publications in relation to the employment law reforms covering:

• Non-disclosure agreements (NDAs)
• Trade union workplace access
• Call for evidence on TUPE
• Equality action plans

It has also updated its implementation roadmap, which now confirms its intention to bring reforms to NDAs into force in 2027.

Consultation published on non-disclosure agreements

The Employment Rights Act 2025 seeks to address the misuse of NDAs by employers who want to silence workers about harassment and discrimination in the workplace by making void any provision (such as a non-disclosure, non-derogatory and non-disparagement clause) in an agreement between a worker and their employer, in so far as it prevents a worker from speaking out about relevant harassment or discrimination, about their employer's response to it, or the making of an allegation of relevant harassment and discrimination. The new rules are therefore not limited to settlement agreements but will also capture employment contracts and other relevant agreements. The consultation is also considering how the new framework will apply to COT3 agreements which are subject to separate statutory rules.

The government has now published a consultation on this new measure, that closes on 8 July 2026. Its revised roadmap indicates its intention for the new measures to come into force in 2027. 

The consultation recognises that the use of NDAs in cases of harassment and discrimination may sometimes be appropriate, for example, where a worker wants to maintain confidentiality as part of a settlement agreement to bring closure to an unpleasant or distressing experience.

The new measure will therefore not void NDAs in agreements that meet specific conditions for an "excepted agreement", which will be outlined in regulations following the outcome of the consultation.

The consultation proposes that the following conditions are met for an "excepted agreement":

• Independent written advice: Before entering into an excepted agreement, a worker must have received independent advice in writing on the terms and effect and legal limitations of the proposed confidentiality obligations from an independent adviser and that the agreement includes the name of the adviser, and the adviser should have indemnity insurance.
• Written consent: The worker should have expressed their preference to enter into the agreement in writing to their employer, following the receipt of independent advice. The intention is that an excepted agreement is only entered into with the worker's clearly stated informed consent. If a worker does not express their preference, the NDA would not be an "excepted agreement" and would be void in so far as it sought to prevent the worker from speaking out about relevant harassment or discrimination.
• 14-day cooling-off period: An excepted agreement should include an explicit right for a worker to withdraw from the agreement without penalty within 14 calendar days of the agreement being entered into. Other options being considered include a shorter cooling-off period of seven or ten days to better support early settlement, and although the government does not currently propose to allow workers to waive the cooling-off period, it is seeking feedback on this point. It is also considering whether the cooling-off period should only apply to the relevant confidentiality provision, rather than the broader agreement.
• A written copy of the excepted agreement should be provided to all parties.
• Past events only: An excepted agreement will only be possible if the incident of relevant harassment or discrimination has (or is alleged to have) already taken place. Currently, pre-dispute NDAs are used by some employers in employment contracts to prevent workers from speaking out against instances of harassment and discrimination that may occur in the future; this proposal would make those provisions unenforceable.
• Time limits: The consultation also invites views on whether the confidentiality obligations in an excepted agreement should be required to be time-limited, and if so, whether the government should prescribe a maximum duration. Options under consideration include two to three years, four to five years, six to ten years, and no set duration where the worker is able to choose a time limit if they would like to.

Even where an agreement meets the conditions for an excepted agreement, it is recognised that workers should still be able to disclose to identified people or organisations such as law enforcement bodies (for example, police, the Health and Safety Executive, the Financial Conduct Authority (FCA)); qualified lawyers; regulated professionals (such as doctors, social workers and tax advisers); victim support services (for instance, counsellors, independent sexual violence advisors); regulatory bodies (like the Solicitors Regulation Authority (SRA), Equality and Human Rights Commission); trade union representatives; and close family members for the purpose of obtaining support.

The consultation proposes that friends should not be included as a permitted disclosure category, given the significant ambiguity in defining who qualifies as a friend and the risk that this could undermine employers' willingness to enter into excepted agreements. However, the parties could agree within the terms of an excepted agreement to specify certain named individuals, for example, a named friend, to whom the worker can still speak.

The consultation also raises the question of whether workers should be able to disclose to prospective employers, such as where an NDA limits a worker's ability to explain gaps in their employment history. No firm proposal has been made on this point.

What does this mean for employers?

There are currently no explicit conditions or limitations to address the misuse of confidentiality clauses or NDAs in cases of harassment and discrimination, although both settlement agreements and Acas COT3 agreements provide some existing protections by requiring that workers are aware of the meaning and effect of proposed agreement terms. Importantly, the new measure will only apply prospectively – it will not affect existing agreements already in place.

Regulators such as the FCA and SRA have also published their own requirements in this area. However, in future, employers will need to ensure that any such provisions comply with the new statutory rules once in force. The new law will apply to any clause in any agreement that seeks to prevent a worker or employee from speaking about relevant harassment or discrimination or their employer's response to it, not just settlement agreements.

The outcome of the consultation and the final regulations are still awaited. However, the government's current proposals may create difficulties for employers when seeking to settle claims close to or during any scheduled tribunal hearing, given that a mandatory cooling-off period would mean the excepted agreement could be withdrawn within 14 days of being entered into, potentially leading to uncertainty as to whether the hearing will go ahead and creating delays in the Employment Tribunal process.

Employers will also need to consider carefully the question of whether they can suggest confidentiality to a worker. The consultation is actively seeking views on whether an employer should be permitted to suggest confidentiality at all. One approach would be to prevent employers from suggesting confidentiality or requesting that a worker signs an excepted agreement, which could reduce the risk of coercion. However, this approach may have unintended consequences: for example, if an employer were to mention the use of an NDA in an initial conversation with the worker, this could be considered as the employer suggesting one and therefore void the option of an excepted agreement even where the worker then decided it was their preference. Additionally, some workers may not be aware of all the options available to them and may not understand that a confidentiality agreement is a viable option without an employer suggesting this.

A further issue for employers to consider is the potential introduction of time limits on confidentiality obligations. If finalised, this would represent a significant shift from current practice, where NDAs typically have no end date. Employers will want to monitor the outcome of the consultation closely.  

Trade union workplace access: what employers need to know

The government has published its response to a consultation on the new statutory right for independent trade unions to access workplaces under the Employment Rights Act 2025 and a new consultation on a draft Code of Practice on access requests (closing 20 May 2026).

The new right of access will enable union officials to engage with workers, in person and digitally, for purposes including representation, support, recruitment, organisation and collective bargaining. The right does not extend to organising industrial action.

How will the new right of access work in practice?

A union wishing to access a workplace must submit a written request (primarily by email) using a standard government template. The request must set out the purpose of the access, the workers the union wishes to engage with, the type of access sought (physical, digital or both), what support is needed from the employer, how frequently access is requested, the relevant workplace locations, the required notice period, and the union's certificate of independence.

Employers then have 15 working days to respond, using the required template, confirming whether the request is accepted or rejected in full or in part. Where accepted, employers must provide details of an internal contact, a breakdown of the categories of workers to whom access is sought, the workplace address, shift pattern information where relevant, and details of available facilities. Where rejected, employers must specify which elements are refused and the reasons for refusal.

Employers can refuse a request on reasonable grounds; for example, where a recognised union already represents the relevant workers, where a statutory recognition process is already under way, or where multiple overlapping requests would create disproportionate administrative burden. Employers are not required to make significant structural, technological or operational changes;existing meeting spaces, communication channels and digital facilities will generally be sufficient.

Where a request is accepted, the parties have 25 working days to agree written terms. If no agreement is reached, either party can refer the matter to the Central Arbitration Committee (CAC) within a referral window of 55 working days. The CAC will handle both applications and alleged breaches. Where it imposes an agreement, it cannot last more than two years, though parties can apply jointly to extend it. Significant financial penalties may be awarded for breach of an access agreement with a first breach attracting a maximum penalty of £75,000, a second breach a maximum of £150,000 and a third and subsequent breaches, a maximum penalty of £500,000 each. Appeals on points of law go to the Employment Appeal Tribunal.

Employers with fewer than 21 workers are exempt, though from 2027 this exemption will not apply in workplaces covered by national bargaining frameworks for adult social care and school support staff.

What should employers do now?

Given the strict timetable proposed, employers should review internal processes in readiness for a potential access request to be made. Employers should identify who in the business will be responsible for access requests, review what existing facilities could be made available without significant investment and identify with which worker groups a union might, as a priority, seek to engage.

Employers should also keep a close eye on the final Code of Practice; the current draft is open for consultation until 20 May 2026 and the finalised code will be a key reference point for both parties.

October 2026 will also bring a separate requirement to include details of the right to join a trade union in written statements of employment particulars. We are awaiting the outcome of the recent consultation on the detail of that right and employers will then need to take steps to amend their written particulars/employment terms accordingly.

Government call for evidence on TUPE

The government has launched a call for evidence on the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which forms part of its broader Make Work Pay agenda. The call for evidence is open for responses until 1 July 2026.

The government's stated aims are to strengthen protections for employees going through TUPE transfers and to modernise the regulations to improve efficiency.

The call for evidence covers seven broad themes including the adequacy of the current protections, the practical difficulties in establishing whether a relevant transfer has taken place, the process of informing and consulting representatives, varying terms and conditions and the guidance and support available to businesses. It also seeks to explore wider considerations including the financial and operational burden of TUPE transfers on business and whether TUPE has produced unintended consequences for individuals with a protected characteristic, or those from specific socio-economic backgrounds.

What does this mean for employers?

TUPE remains in force in its current form and employers should continue to apply it as usual. However, the call for evidence touches on some of the most practically significant and commercially sensitive aspects of TUPE and it will be interesting to see whether any substantive proposals for reform emerge.

Responses to the call for evidence are open until 1 July 2026. Any changes following the call for evidence will be subject to further consultation, so reform is not imminent, but employers will need to keep a careful watch on developments. 

Gender equality action plans: detailed guidance published

Following on from its announcement in March on the new obligation for large employers to produce gender equality action plans, the government has published new step-by-step guidance for employers. The mandatory regime does not take effect until spring 2027, but voluntary implementation from April 2026 is encouraged.

The guidance introduces a structured six-step framework which will involve:

• Understanding the issues: Employers should review workforce data, including hiring rates, promotion statistics and gender pay gap figures, and engage with employees through surveys, focus groups and staff networks to identify the root causes of the pay gap and understand how menopause affects the workforce. Senior leaders and managers should be consulted and consideration given to how sex intersects with other characteristics such as ethnicity or disability.
• Identifying actions: Employers must select a minimum of two actions, choosing from the government's list of 18 developed options. At least one must address the gender pay gap and at least one must support employees experiencing menopause. Actions may include measures such as advertising leave policies, reducing bias in recruitment, training managers on menopause support, or offering occupational health advice. Each action should be specific, measurable and relevant to the workforce, and must be categorised as either "new or in progress" or "embedded," with at least two falling into the former category.
• Writing a supporting narrative: Each action should be accompanied with an explanation (up to 100 words) setting out why it was chosen, the evidence behind it and how progress will be measured. The overall plan should also include a broader narrative of up to 200 words outlining the organisation's wider gender equality objectives.
• Submitting an action plan: The plan should be published via the government's Gender Pay Gap Service alongside an employer's annual mandatory gender pay gap reporting. The plan must be reviewed and approved by a designated responsible person before submission.
• Tracking outcomes: Progress on actions should be monitored regularly to assess whether intended results are being achieved. Data should be collected consistently to evaluate impact. The plan should be treated as an ongoing commitment rather than a compliance exercise, with adjustments made as needed.
• Reviewing and revising annually: Review and update the plan each year. An interim review will be required one and two years after submission, with a more detailed review at the three-year mark. Actions that have become fully embedded or are not delivering the desired results should be updated, replaced, or supplemented to ensure that at least two actions are always actively in progress.

What should employers do now?

While the requirements are only voluntary at present, employers should use the opportunity to get ahead before the legal obligation to produce an action plan becomes mandatory from 2027; further regulations are expected setting out the details, including the precise implementation date.

Employers should remember that the new action plan requirements sit alongside, but do not replace, existing obligations, including those relating to discrimination under the Equality Act 2010, health and safety requirements and the statutory duties in relation to flexible working requests (which themselves are subject to current reform).

As well as reducing legal risk, a forward-thinking strategy (properly implemented and regularly reviewed and updated) will also help attract and retain talent, improve workplace culture, and deliver real business benefits.

Our latest webinar on employment law reforms

Last Thursday, we hosted a webinar on the current state of the government's employment law reforms and the steps employers should be taking now. If you missed it, you can catch up >

EAT rules on the status of job offers

The claimant received a job offer letter setting out the key terms of employment, including start date, salary, hours, holiday, bonus, pension and an agreed employer contribution of £3,000 towards relocation costs. The offer was stated to be subject to three conditions: satisfactory references, a right to work check, and successful completion of a six-month probationary period.

The claimant accepted the offer and returned his new starter form, referee details and copies of his right to work documents (with the originals to be produced when he started). However, the employer withdrew the offer approximately three weeks later, citing project delays, just weeks before his intended start date.

The Employment Tribunal held that no binding contract between the claimant and the employer existed. However, the Employment Appeal Tribunal (EAT) overturned this decision finding that a binding contract did exist at the point the offer was withdrawn.

The EAT considered whether the three conditions which the offer was subject to were:

• conditions precedent preventing a contract from coming into existence until all three were satisfied; or
• conditions subsequent meaning a contract had already been formed but could be terminated if a condition was not met.

Emphasising that this is always a question of construction, to be determined on the specific facts, the EAT concluded that the conditions here were conditions subsequent and a binding contract had therefore already been formed when the offer was accepted.

The EAT noted that all three conditions were grouped together without differentiation and that crucially, one of them, the probationary period, could only be completed after employment had actually begun, which made it difficult to read any of the conditions as preventing a contract from arising at the outset. The fact that the employer had also begun making arrangements for the claimant to start employment, including taking steps towards obtaining a security pass, reinforced the view that both parties were treating the agreement as concluded.

Since the contract said nothing about notice, a term of reasonable notice had to be implied with the assessment of what is "reasonable" being made by reference to what was known to both parties at the time the contract was entered into, not by reference to the employer's internal practices or matters that were not mutually known. Taking into account the seniority of the role, the requirement to relocate internationally and the broader circumstances of the hire, the EAT determined that a reasonable notice period would be three months and the employer needed to therefore pay the claimant for that period accordingly.

What does this mean for employers?

This case is an important reminder that the label placed on conditions in a job offer does not determine their legal effect: employment tribunals will look at the substance of the arrangement as a whole.

Employers should take steps to review their offer letters. Where the intention is that no binding contract should arise until all conditions are satisfied, the offer letter must say so in clear, express terms. Conditions precedent should be clearly identified and distinguished from conditions that only operate once employment has begun.

While practicalities will inevitably necessitate that some steps will need to be taken, employers should also take care not to commence onboarding processes until they are confident that employment will go ahead as planned.

Employers should be aware that if an offer is withdrawn, where a contract has been formed but is silent on notice, a reasonable period will be implied; this period could be substantial where the role is senior, involves relocation or is otherwise of particular significance to the individual. Employers should consider including an express notice provision in offer letters, particularly for senior roles.