A number of key provisions of the Employment Rights Act 2025 (the Act) are coming into force this month. The time limit for employees to bring employment tribunal claims has already increased to six months for claims relating to circumstances arising on or after 1 October (details here), and from 30 October trade unions will have the right to request access to workplaces (details here). This article deals with another change in force from 30 October 2026 which means that employers will be required to take all reasonable steps to prevent sexual harassment in their workplace and will be liable for harassment of their staff by third parties, unless they can show that they took all reasonable steps to prevent that harassment from occurring. Both changes are considered below.
Prevention of sexual harassment
The duty to take all reasonable steps to prevent sexual harassment isn’t entirely new. Since October 2024 employers have been required to take reasonable steps to prevent sexual harassment of their workforce. The inclusion of the word “all” is a small but very significant drafting change though. From 30 October 2026, an employer faced with a claim for sexual harassment will need to show that there was no other reasonable step they could have taken to prevent the harassment occurring – not just that they did something reasonable.
“All reasonable steps” is therefore a high threshold. The same wording already applies to the statutory defence available where an employer seeks to avoid liability for discriminatory acts by an employee, but that defence rarely succeeds in practice.
A breach of the preventative duty does not currently create a freestanding claim. However, where a claimant succeeds in a claim involving sexual harassment to any extent, a tribunal must consider whether the employer breached the duty and, if it finds that it did, the tribunal may increase compensation by up to 25%. In an uncapped discrimination claim that uplift could have a significant monetary value.
Liability for harassment by third parties
The Act will also reintroduce employer liability for third-party harassment relating to all relevant protected characteristics and not just in relation to sexual harassment. To succeed in a claim, an employee will need to show that the harassment occurred in the course of the claimant’s employment and that the employer failed to take all reasonable steps to prevent it.
What does this mean for employers?
What amounts to all reasonable steps will depend on factors including the employer’s size, sector, working environment, resources and the particular risks that their organisation faces in relation to harassment. Although the government will have the power to make regulations specifying steps that are to be regarded as “reasonable” for the purposes of complying with the duty to prevent sexual harassment, these are not expected until 2027/2028. No equivalent guidance is expected in relation to the prevention of third-party harassment.
In the meantime, the key material for employers to read is the Equality and Human Rights Commission technical guidance on Sexual Harassment and Harassment at work, which sets out the key steps employers should be taking to prevent and respond to harassment.
The actions we recommend employers take now are as follows:
- Appoint a senior lead with responsibility for the prevention of harassment and sufficient authority to get things done – We often see compliance with various legal duties fall by the wayside because no-one (or no one at the right level) is driving it.
- Carry out a harassment risk assessment – This is the key foundational step as organisations cannot successfully tackle harassment if they do not know where it is happening or what the risk factors are in their business. Approach this in a similar way to a health and safety risk assessment. In addition, carry out specific risk assessments for unusual or potentially high-risk events (such as the staff Christmas party).
- Engage with staff and review past incidents – Use methods such as anonymous staff surveys or staff groups to understand your workforce’s experiences of harassment and where they see the risks lying. Feed information from historic complaints into the assessment, although don’t rely on this exclusively as harassment of all kinds is notoriously underreported.
- Create and monitor an action plan – Set out the preventative measures needed to address any risks you have identified, how, when and by whom these measures will be implemented and how their effectiveness will be assessed.
- Review policies and reporting routes – Ensure your anti-harassment policies reflect the risk assessment, explain clearly how complaints can be made and provide a robust process for handling them. Check how they interact with your equal opportunities, disciplinary, grievance, social media and electronic communications policies. Offer multiple reporting routes where possible and make it clear that employees will not be victimised for raising genuine concerns, even if a complaint is not upheld.
- Deliver meaningful training – Don’t rely on tick-box e-learning alone- this is another very common mistake we see. Train all staff (ideally in person) on what harassment looks like, its impact, and how to challenge behaviour and report concerns. Give managers additional training on warning signs and how to respond appropriately when issues are brought to their attention. As with the policies, your training should reflect the results of your risk assessment so use illustrative scenarios that are realistic for your organisation. Encourage discussion, as this can really aid understanding of how others may experience harassment and encourage an open environment. Training should be provided to staff on induction and refreshed regularly.
- Address the third-party risks – Review and update commercial contracts. Set out behavioural expectations and apportion liability for third-party harassment in client contracts and terms of business. Ensure service providers have robust anti-harassment measures in place and train their staff. Ensure any staff who are not engaged directly by the business but who come into contact with your organisation’s staff are aware of your organisation’s policies relating to equal opportunities and anti-harassment. Where appropriate, consider setting out behaviour expectations on signage or on event invitations. Prepare staff to report third-party conduct and equip managers to respond promptly, support affected employees and, where appropriate, challenge the third party, restrict contact or end the relationship.
- Keep arrangements under review – Refresh risk assessments and update measures regularly and always following complaints or changes to the business or its risk profile. Make sure you are tracking incidents of harassment to identify patterns and higher-risk areas.
