It’s been a while since our first major Employment Rights Bill article (check it out here if you missed it!). The bill will undoubtedly prove to be a colossal piece of employment legislation when it finally reaches the statute books – one that genuinely has the potential to reshape the employment law landscape, for better or ill (depending on where you sit!).

However, whilst most employment lawyers have been feverishly trying to whip up excitement for the new regulations (I’m sure you’ve all seen various accounts of the trials and tribulations being faced as the bill progresses through parliament, not much of which has been particularly interesting), the reality is that we are still far from knowing what the final law is likely to be in the various areas touched on by the bill. Also, as we highlighted in our initial piece, whatever changes are to be made are still some way off so there is plenty of time for even the most prudent employers to prepare (see the roadmap on timings further below).

There has this week though been a genuinely important development to update you on, namely several proposed amendments that have been tabled to the bill, including several unexpected and significant government-backed additions.

The standout? A bold legislative plan to ban NDAs / confidentiality clauses that attempt to silence workers who raise allegations of discrimination or harassment.

There has been talk of banning so called ‘gagging clauses’ for some time now. Widespread concern about the abuse of such ‘NDAs’ to mask workplace misconduct is prevalent, particularly in respect of disclosures about sexual harassment. The recent accounts of allegations made against TV presenter Gregg Wallace (many of which are historic) would certainly suggest there remains a considerable reluctance for people to come forward with such complaints, although there would appear to be no suggestion that gagging played a part in any of those allegations.

The proposed amendment addresses this concern is a very broad-brush way. It seeks to render void any contractual provision that restricts an employee or worker from making disclosures about discrimination or harassment, as defined in the Equality Act 2010. This is not limited to certain types of contract, so is clearly intended to prevent the long established practice of obtaining confidentiality in settlement agreements where there is a discrimination or harassment angle.

The drafting for this new amendment leaves scope for “excepted agreements” to be determined where the ban on confidentiality would not apply. It is unclear what is intended to encompass such an agreement but it seems very unlikely this is designed to provide a settlement agreement exception. What’s more likely is that there will be some scope retained to allow for confidentiality terms where these are genuinely desired by the complainant. This would seem to be an obvious and important exception to provide for.

There is also power within the proposed wording to extend the ban to agreements with other individuals, such as independent contractors. This is important (and sensible) from the perspective of the creative industries, such as Film and TV, given the large number of freelancers who regularly work in such sectors. It would be difficult to justify why such a ban should only be apply to regular employees, given workers and self-employed contractors already benefit from the protections within the Equality Act.

One curious omission, at this stage at least, is that employers would not be prevented from seeking confidentiality related to claims of failure to make reasonable adjustments brought by disabled employees. This may well be an oversight, although perhaps it is felt that there is less scope for abuse from a confidentiality perspective with such concerns.

While the intention to foster transparency and safer workplaces is certainly laudable, there could be significant unintended consequences for workplace dispute resolution if the proposed amendment is introduced in its current draft form. In almost all of the settlement agreements we negotiate on behalf of clients in the sports and creative sectors, confidentiality is literally a deal breaker. This is not because our clients are trying to hide things – they almost always deny what has been alleged, mostly with very strong grounds to do so. Instead, confidentiality is fundamental to the commercial incentive to settle.

Whilst compromising the potential to sue is the core focus of a settlement agreement, just as much damage can be caused reputationally if allegations are aired in public. Businesses are therefore likely to be far more reluctant to settle discrimination or harassment claims if there is no scope for confidentiality.

The proposed reform will therefore likely result in one of two things. We could either see far less scope to resolve disputes, leading to many more claims being issued and pursued all the way through to an already heavily backlogged tribunal system. Or we could see employees simply walk away from difficult situations without the severance packages they would have otherwise received, as their employer is no longer able to commercially justify a settlement. Feasibly we could see both, with them very much depending on the mindset of the employee. Neither of these outcomes are attractive, especially for those employees who have no real desire to make matters public and pursue expensive, stressful litigation. We’re also fairly certain they aren’t intended.

It’s therefore crucial that the government considers this amendment very carefully. There is a genuine need for additional regulation here but it’s important that all factors are considered before this becomes law.

Irrespective of how the amendment shakes out, there will inevitably be a need to redraft contracts and settlement agreements to comply with the new rules. There is no need to launch a review now (such changes are many months away), but we’d suggest giving thought to how any such changes might otherwise affect any upcoming exits you are considering. It seems likely that strategies to manage sensitive exits and internal investigations will need to be overhauled post the changes coming into force so gaming out how this might play out at an early stage could potentially prove very useful down the line.

The proposed ban on ‘gagging’ clauses is just one part of the published proposed amendments to the bill. Here are the other two significant developments that have the potential to be enacted (i.e. are government backed):

Fire and rehire

The ban on employers firing and rehiring employees who refuse changes to employment terms (which was part of the original bill) has been softened, although not considerably. Any such terminations will still be automatically unfair, with the only defence being to demonstrate that the business is in severe financial distress (which will be an extremely high bar) – however, the protection will now seemingly only apply to “restricted variations” which includes pay, working hours, pension, time off rights and shift patterns. Notably, ‘benefits’ is not included (which could potentially be a lifeline for employers), although there is scope for more categories to be added via secondary legislation. Even with this change though, it’s hard to see how any workplace change programme will be anything less than migraine inducing.

Separately, the government is backing a further amendment to extend the fire and rehire ban to cover cases where an employer intends to replace employees with self-employed independent contractors and freelancers who are going to do substantially the same work. This is actually a significant extension in practice and something we know has been relevant to a number of recent redundancy situations we’ve dealt with for clients. On the Film and TV side for example, there can often be perfectly justifiable commercial reasons why a production company may wish to move to freelance resource on a production-by-production basis as opposed to retaining permanent employed positions. That sort of business rationale may well become unlawful if this change is implemented so businesses will need to consider the implications of this change very carefully.

Extended family rights 

Less controversial are proposed extensions to the existing family leave regime. Bereavement leave rights will be extended to cover pregnancy loss for those who suffer a miscarriage prior to the 24th week of pregnancy. Statutory paternity pay is set to be increased and is likely to provide fathers and second parents with up to six weeks’ leave and pay, calculated at the lower of the rate of 90% of the father’s salary or median gross earnings.

There is also a proposal to introduce ‘kinship leave’ for friends, relatives or family members who assist with child caring responsibilities. This will be for a maximum of 52 weeks and will be applicable until the child turns 18. It’s proposed that such leave will be sharable between those with such responsibilities, whilst legal protections will apply in respect of redundancy, the right to return and pay during such leave.

These are separate measures to the more comprehensive review of all statutory parental leave that was announced last week. The new amendments specifically provide that such review must be laid before Parliament no later than 1 January 2027.

Each of the above are all important in their own right, but there is no doubt that the NDA ban connected to discrimination and harassment cases will mark the most drastic and disruptive shift in current UK employment practice.

It’s been up in the air for a while now as to when we can expect any of the changes that are due to be introduced by the bill. Thankfully, last week, the government also published its planned timetable for the introduction of the various new laws. We’ve set out the major diary points below but the headline (which hopefully shouldn’t come as much surprise, given our prior briefings) is that the vast majority (and most significant) changes are a good way off:

April 2026:

• Protective award for collective redundancies (doubling maximum period);
• Day 1’ paternity and unpaid parental leave;
• Enhanced whistleblower protections;
• Establishment of a Fair Work Agency;
• Statutory Sick Pay improvements (removal of lower earnings limit and waiting period); and
• Simplified trade union recognition and digital/workplace balloting systems.

October 2026:

• Ban on fire-and-rehire;
• Employer duty to take ‘all reasonable steps’ to prevent sexual harassment; and
• Expanded trade union rights.

(some unspecified time in) 2027:

• Mandatory gender pay gap and menopause action plans (voluntary from April 2026);
• Rights for pregnant workers;
• Bereavement leave;
• Protections against zero hour contract abuse; and
• The Big One… ‘Day 1’ unfair dismissal rights (consultations will begin this summer and continue into early 2026).

When you sit back and look at the scope of what the Employment Rights Bill is designed to tackle, it’s hard to avoid the gnawing itch of a hotch-potch piece of legislation with seemingly little focus. Perhaps that’s the point though. Labour’s landslide at the last general election has provided an opportunity to try and address long standing employment concerns in a whole host of areas and it’s understandable the government have sought to address as much in one go as they can, rather than targeting specific areas one at a time.

What we have on the cards today will inevitably pose concerns in certain business and investment circles. As we are predominantly advisers to employers, we share this anxiety. However, it is also important to reflect a little. What we are looking at here is not far removed from where UK employment law has been before, during which growth was not stifled. Also, when looked at rationally, much of what is being proposed here will not shift the dial that much and will certainly not result in a legal landscape that is ultra-pro employee. We continue to be confident therefore in the desirability of the UK as a place to do business, whether that be creating your next TV show or developing the next mega indie video game hit.

So is there anything any of you need to be doing now? Well, being honest, not really. The changes are all many months away and the final detail is still not locked down. There will definitely be lots to do come next year (such as reviewing and revising contracts and policies, reappraising exit strategies, training your HR teams etc), but it seems folly to be jumping into any of that just yet. You can be assured though that we will let you know when you should.

Our employment and immigration specialists are at the forefront of analysis as to what the new Employment Rights Bill will mean for media and entertainment, video games, betting and gaming and sports businesses. If you’d like help reviewing your templates or navigating the impact of any of these proposed reforms, please contact us here.