After a significant tranche of Employment Rights Act 2025 ("ERA 25") measures came into force in April, progress continues with consultations, draft Codes of Practice and guidance.
Consultation on misuse of non-disclosure agreements launched
A consultation on the misuse of non-disclosure agreements (NDAs) has been launched. ERA 25 introduces a measure that will void any provision in an agreement (including employment contracts or settlement agreements) preventing a worker from speaking out about relevant harassment or discrimination. The consultation seeks views on:
- The conditions to be met for an NDA to still be validly entered into in cases of harassment and discrimination - i.e. when NDAs should still be allowed
- The individuals or bodies that workers covered by an excepted agreement can speak to about harassment or discrimination, irrespective of what their NDA says
- The type of individuals who may be covered beyond workers and employees
The consultation on regulations to prevent the misuse of NDAs in cases of workplace harassment or discrimination is open for responses until 8 July 2026.
Detailed guidance on creating gender equality action plans published
As promised when publishing the Overview guidance and Action plans: list of actions in March, more detailed guidance on creating gender equality action plans has now been published. This step-by-step Creating an action plan: guidance for employers includes the original overview, plus six further individual guidance documents. These cover:-
- understanding the issues in your organisation
- choosing actions
- writing a supportive narrative
- how to submit an action plan
- tracking outcomes
- reviewing the plan
The publication of these documents coincided with organisations being encouraged to voluntarily create an action plan from 6 April 2026. Publication will become mandatory for organisations with 250 or more employees from 6 April 2027.
UK government response to consultation on trade union access published
The UK Government response to the consultation on trade union right of access confirms that secondary legislation is to be brought forward setting out the detail of how the right will work. Key elements will include:-
- a clear and consistent process for submitting, responding to, and negotiating access requests, ensuring transparency and efficiency for both unions and employer
- the ability for unions to request both physical and digital access, reflecting the realities of modern workplaces and hybrid working patterns
- a role for the Central Arbitration Committee (CAC) in determining whether access takes place where parties cannot agree, supported by a fair and proportionate enforcement mechanism
- a streamlined route for straightforward cases, reducing administrative burden and supporting timely access where circumstances allow
- a penalty framework that ensures compliance, with sanctions that deter repeat breaches and uphold the integrity of access agreements
The strengthened right of access is scheduled to come into force in October 2026.
Consultation on draft code of practice on trade unions' right of access into workplaces
Alongside the response to the consultation on the right of access, the UK government also published a further consultation on draft code of practice on trade unions' right of access into workplaces. The new code will be the main source of practical guidance on the statutory access framework. It will set out how requests should be made, how employers should respond, and how constructive engagement should be facilitated in a range of workplace settings. It will also include best practice examples. Views are sought from unions, employers, workers, scrutineers and the wider public. The consultation closes on 20 May 2026.
Fair Work Agency hits the ground running
On 7 April the Fair Work Agency (FWA) was established. Its remit has been well publicised, taking over functions previously undertaken by a number of existing enforcement bodies, plus a new power of enforcement of rights to holiday pay. The remit may be extended further in the future. The following key documents have now been published:
The Fair Work Agency Enforcement Policy Statement sets out the purpose of the FWA's enforcement activities and guiding principles. It also explains how the FWA decides to undertake an investigation, how enforcement officers' powers will be exercised in both civil and criminal investigations and the range of enforcement actions the FWA may take.
The Code of Practice on Fair Work Agency Labour Market Enforcement Undertakings and Orders sets out the factors to be considered by the FWA when using the Labour Market Enforcement (LME) regime. This includes the making of an LME undertaking. When the FWA believes a business has committed an offence it may invite the business to give an LME undertaking, and the undertaking will include at least one measure that is necessary to prevent further non-compliance. In addition to setting out the factors to be taken into consideration by the FWA when seeking an undertaking, the Code also sets out the process to be followed when attempting to secure an undertaking, and how compliance will be monitored. The Code also sets out when the FWA can seek a LME order from a court in circumstances where an undertaking has been refused, not given within the requisite time, or breached.
