Two changes took effect on 30 October 2026: an increase in the standard of the duty on employers to prevent sexual harassment, and liability for employers where a worker is harassed by a third party.
Duty to Prevent Sexual Harassment
The 2024 duty for an employer to take ‘reasonable steps’ to prevent sexual harassment has been raised to ‘all reasonable steps’ which is more onerous. Employers must be able to show that they have taken every reasonable step available that could be expected to prevent sexual harassment in the workplace.
What is reasonable depends on the employer’s size and resources. Further detail is rather unhelpfully expected in 2027/2028, following consultation, through regulations setting out specifically what amounts to ‘all reasonable steps’.
Steps for Employers
Keys steps employers can take include:
Update policies to include a separate, detailed sexual harassment policy.
Refresh risk assessments.
Make multiple reporting lines available and make sure this is set out in the policies.
Ensure all manager and HR training is up to date.
Monitor and evaluate the actions taken.
EHRC Technical Guidance
The EHRC published its updated technical guidance. It sets out that the ‘all reasonable steps’ duty is an objective test and if there are any other reasonable steps that an employer could have taken, but does not do so, then the employer will likely fail to comply with the preventative duty. Compliance is a continuous process, and the effectiveness of measures must be regularly reviewed.
An employer is unlikely to comply with the duty without carrying out a comprehensive risk assessment. The guidance stresses the importance of this assessment because the duty is anticipatory.
Workplace culture is key to preventing harassment and the guidance emphasises the role of leaders, managers and supervisors.
Third Party Harassment Liability
Under the changes, employers can be liable for harassment if their employees have been harassed by third parties unless they can show that ‘all reasonable steps’ have been taken to prevent the harassment.
Third parties can include clients, customers, contractors and suppliers. The term covers anyone other than the employer or its employees who may encounter workers during their employment.
Steps for Employers
All employers, not just those where staff frequently encounter third parties such as retail and hospitality, can prepare by taking these steps:
Reviewing third party contracts for clear behavioural expectations.
Update any relevant policies where possible.
Ensure that any training includes third party scenarios.
Consider any appropriate signage in the workplace.
Avoid lone working.
Consider video surveillance.
Encouraging reporting.
EHRC Technical Guidance
The EHRC guidance states that the steps it would be reasonable for an employer to take to prevent third party harassment are likely to differ from those for harassment by a worker. It further stresses the importance of risk assessments for protection against third party harassment. The measures discussed include the possible removal of third parties from the premises, clear communications with third parties and ways for employees to remove themselves from a harassing situation.
The guidance clarifies that the duty for employers is to take all steps that are reasonable to prevent third party harassment. Reassuringly, it explains that employers are not expected to plan for completely unexpected situations or eliminate all third-party harassment.
Consequences of Non-compliance for Employers
Breaching your obligation as an employer to prevent all types of harassment can have severe repercussions for the business. These can include:
If the Tribunal finds that an employer has failed its preventative duty, a claimant could receive an uplift of up to 35% to their compensation. Compensation in these types of cases are uncapped so the uplift could have significant financial consequences for the business.
Employers may also be subject to investigations by the EHRC into their practices. These investigations can lead to the issuing of formal notices addressing non-compliance.
Both Tribunal cases and EHRC enforcement actions are public information which adds a layer of reputational harm on any employers.
Claims for harassment can have detrimental impacts on culture and moral in the workplace.
BPE’s employment team offer legal advice to both businesses and individuals. If you are looking for legal advice relating to the contents of this article, please get in touch with one of the team who will be happy to help you.
