Currently, employers have a duty to take reasonable steps to prevent sexual harassment from occurring in the course of employment. If an employer fails in their obligations, the tribunal may apply an uplift in compensation for claims of sexual harassment.
This duty was created in 2023 but is already set to change under the Employment Rights Act.
All reasonable steps
From October 2026, employers will be required to take all reasonable steps to prevent sexual harassment. The changes simplify the requirements, bringing employers’ duties and defence in line to both require ‘all reasonable steps’.
The current law doesn’t list steps that employers must take, but the Employment Rights Act allows for regulations to specify the steps regarded as reasonable. These regulations are expected in 2027. Government proposals have suggested these could include:
Carrying out assessments.
Publishing plans or policies.
Steps relating to how employees can report sexual harassment.
Steps relating to how complaints are handled.
Until we have more detail about the regulations, it is difficult to say what practical difference this will make.
The EHRC has already provided an 8-step guide to preventing sexual harassment at work, to “illustrate” the types of action employers could take and acknowledges that different employers may take different approaches. It is wise for employers to follow this guidance, as measures such as anti-harassment policies, risk assessments, systems to report harassment and responding to complaints will help show they have taken reasonable steps. Following these steps may also help you prepare for the new regulations.
The regulations produced under the Employment Rights Bill could have more authority, but the regulations will still need to balance this with flexibility for different types of businesses.
Third Party Harassment
Previously, employers could only be penalised for failing to take reasonable steps to prevent third party harassment. Now, the Employment Rights Act allows employers to be held liable for harassment by third parties towards staff. This is not limited to sexual harassment.
This will be effective from October 2026.
Vicarious liability
Employers may also be vicariously liable for discrimination committed by employees (whether towards other employees, or a third party such as a customer). Employers can defend against such claims by showing that they took all reasonable steps to prevent the harassment.
The Employment Rights Bill has not made any changes to vicarious liability.
Whistleblowing
Employees, workers and trainees are protected when they make a disclosure in the public interest concerning past, current or potential future wrongdoing. The disclosure must concern one of the specified grounds:
a criminal offence.
a breach of legal obligation.
a miscarriage of justice.
a danger to the health and safety of any individual.
damage to the environment.
a deliberate attempt to cover up any of the above.
The Employment Rights Bill added a ground for sexual harassment in the past, currently occurring, or likely to occur, which is effective from 6th April 2026.
Disclosures about sexual harassment would already fit the grounds of criminal offence and/or breach of legal obligation. Again, until we have more detail, it is unclear whether this addition will make a practical difference.
How does this affect employers?
The changes place a higher burden on employers but could also provide more certainty. We will know more when the regulations set out the reasonable steps for employers to take.
For now, employers should ensure they are engaging fully with their current duties. This will protect from claims under the current law and help prepare for the changes.
Read more about the key changes in the Employment Rights Bill, and how employers can prepare.
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