Harassment changes under the Employment Rights Act

Since October 2024, employers have been under a duty to take reasonable steps to prevent sexual harassment in the workplace. This covers harassment by colleagues and also by third parties such as customers, suppliers or consultants.

Where an employer fails to comply with this duty and a tribunal upholds a sexual harassment claim, any compensation awarded can be increased by up to 25%. Even where no claim has been brought, the Equality and Human Rights Commission (EHRC) can take enforcement action against employers it considers are not doing enough to comply.

From 30 October 2026, the duty will be strengthened: employers will be required to take all reasonable steps to prevent sexual harassment, which will be a higher bar for employers to meet. Regulations will be published setting out the steps employers should take, but not before 2027.

Until the regulations are published it is difficult to know exactly what more will be required, but there are still steps which employers can take to prepare. When the duty was introduced in 2024, the EHRC recommended that employers implement a number of measures including: risk assessments; effective policies; training for managers and staff; encouraging reporting; having a thorough investigation process; and including appropriate wording in third party contracts.

Importantly, the EHRC recommends keeping all measures under regular review and updating as needed. Now is a good time to reflect on current policies and processes to assess whether they are working effectively and make any necessary improvements. This will give your organisation the best foundations on which to build once the regulations are published.

Although it is currently possible for an employee to bring a claim of third party harassment, this type of claim is not straightforward and often unsuccessful. From 30 October 2026, the Equality Act will be amended to create new liability for employers where an employee is harassed by a third party, unless the employer has taken all reasonable steps to prevent the harassment. This new third party liability covers all types of harassment under the Equality Act, including sexual harassment and harassment related to other protected characteristics (such as race, religion, sexual orientation, age and disability).

There are a number of steps which employers should be taking to reduce the risk of third party harassment, including:

• Carrying out a risk assessment to assess the situations in which employees may be vulnerable to third party harassment (including at events both on and off site). This may mean expanding an existing sexual harassment risk assessment or producing a new, separate risk assessment.
  
  
• Reviewing contracts and codes of conduct with suppliers and other third parties and introducing or updating provisions addressing harassment
  
  
• Where there are employees who deal directly with the public, considering what preventative measures are already in place and whether these are adequate or need to be updated
  
  
• Revising harassment and grievance policies to cover third party harassment so that employees know how and when to raise concerns and rolling these out to staff
  
  
• Training managers on their responsibilities in relation to protecting employees from harassment, and how to encourage a speak up culture and handle complaints (whether about colleagues or third parties)

Many employers will have some or all of these measures in place as part of their compliance with the duty to prevent sexual harassment. If so, it is important to check whether current risk assessments, policies, processes, and training programmes are broad enough to cover all types of harassment and not just sexual harassment, and revise them if necessary. In any event, all harassment prevention measures should be regularly reviewed and refreshed to ensure they are effective.