Employment Rights Bill Deep Dive #4 – Workplace protections against harassment

The Employment Rights Bill, expected to come into force in 2026, proposes many changes to current employment law. Those changes include strengthening existing workplace protections against harassment by building on the new duty to prevent sexual harassment at work introduced by the previous Government and imposing liability on employers for third party harassment.

Below we look at the changes proposed in relation to harassment at work and their impact on employers.

All reasonable steps

The new duty to prevent sexual harassment came into force on 26 October 2024. It requires employers to take ‘reasonable steps’ to prevent sexual harassment of their employees in the course of their employment. The legislation which introduced the change – the Worker Protection (Amendment of Equality Act 2010) Act 2023 – was originally a private members’ bill and was significantly watered down during the parliamentary process. In particular, the requirement to take reasonable steps was originally one of ‘all reasonable steps’.

The Bill will strengthen the new duty by requiring employers to take all reasonable steps to prevent sexual harassment at work (as originally proposed). This means that employers will need to implement further, more exhaustive measures to ensure sexual harassment is prevented – doing everything reasonably possible. One of the aims of extending the new duty in this way is to align it with the well-established concept of the ‘all reasonable steps’ defence that already exists under the Equality Act 2010.

The Bill provides for regulations to be made which (after a period of consultation) are expected to specify a list of steps that an employer should take to show that it has taken all reasonable steps. An employer will also need to show that it has taken any other preventative steps that it is reasonable for them to take in the particular circumstances, which might reflect factors such as their size, resources and the sector in which they operate, to comply with the enhanced duty. The specified steps are likely to broadly reflect the measures already identified by the Equality and Human Rights Commission (EHRC) in its updated technical guidance on sexual harassment at work and eight-step guide on preventing sexual harassment at work such as: 

• developing an effective anti-harassment policy;
• carrying out sexual harassment risk assessments;
• providing relevant training to staff; and
• monitoring and evaluating the effectiveness of action taken.

The Government’s impact assessment on the all reasonable steps regulations refers to the possibility of a requirement for organisations with at least 250 employees to produce action plans outlining steps they are taking to reduce the risk and prevalence of sexual harassment in their organisation and to report on the contents of that plan via the gender pay gap portal. Although the Government’s impact assessment indicates that employers would be provided with guidance and resources to support them in producing and reporting on these plans, this requirement will likely involve significant additional time and resource. 

The EHRC’s updated technical guidance already sets a high threshold for compliance with the new duty and so it remains to be seen what practical difference, if any, this enhancement will make. Certainly, employers should continue to implement the measures identified in prevention strategies prepared in response to the new duty. Risk assessments should be ongoing and employers should be regularly evaluating the effectiveness of their actions through complaints data analysis, staff surveys and other similar measures. It is proposed that the EHRC will publish a new statutory code of practice to provide more detailed guidance for employers on complying with the enhanced duty under the Bill.

Liability for third party harassment

The Bill will also reintroduce employer liability for third party harassment by imposing a duty on employers not to permit a third party to harass their employees in the course of their employment. This will apply to all harassment related to any relevant protected characteristic, not just sexual harassment. Under this change, an employer will permit third party harassment where it fails to take all reasonable steps to prevent it. A third party includes anyone other than the employer or their employees and so could include clients, customers, service users, contractors etc. There will be no requirement for the harassment to have occurred on at least two occasions or for the employer to have known about the harassment.

While the Tribunals have considered what constitutes ‘all reasonable steps’ in the context of the defence available to employers under the current discrimination and harassment regime, the issue becomes more difficult when it comes to taking steps to prevent third party harassment. It is possible that Tribunals will expect employers to have taken a variety of steps to prevent third party harassment, such as:

• including terms within commercial agreements which notify third parties of their anti-harassment policies and requiring them to adhere to those policies with appropriate indemnities if they fail to do so;
• using signage and notices on the employer’s website or in areas accessible to customers from the general public;
• training staff and management on how to spot and report harassment;
• taking robust action where a complaint about harassment by a third party is brought to their attention, including investigating the complaint and addressing it with the third party involved.

Although an employee cannot currently bring a claim of third party harassment against their employer, the duty to prevent sexual harassment does cover third party harassment and the EHRC emphasises the importance of recognising and taking steps to mitigate the risk of harassment of any nature by third parties in the workplace. While employers should already be taking action in the context of sexual harassment by third parties as a result of the new duty to prevent, the reintroduction of legal liability for third party harassment is likely to justify a much broader and more robust approach.

Protected disclosures relating to sexual harassment

The Bill will extend the current whistleblowing regime to include a new category of protected disclosure in relation to sexual harassment that has occurred, is occurring or is likely to occur. This follows the Labour party’s commitment to strengthening the rights of whistleblowers in relation to sexual harassment.

This change will mean that where an employee is dismissed because they have made a protected disclosure about sexual harassment, their dismissal will be automatically unfair. There will be no limit on the compensation that can be awarded where a claim for automatic unfair dismissal in these circumstances succeeds. An employee will also be protected from any other detrimental treatment as a result of their disclosure.

Where an employee blows the whistle on sexual harassment at work, an employer will need to consider how this could impact on an investigation of the issue (which might otherwise be investigated under an anti-harassment or grievance policy). Employers operating in the financial services sector will also need to consider the impact of the additional rules relating to whistleblowers imposed by the regulators.

Non-disclosure agreements

Existing limitations on the use of non-disclosure agreements mean that disclosures about sexual harassment will not be covered by confidentiality provisions in employment contracts and settlement agreements. As a result of recent amendments to the Bill, those existing limitations will be extended to prohibit any confidentiality provision that seeks to prevent a worker from making a disclosure about any act of harassment (that is harassment related to any of the relevant protected characteristics set out in section 26 of the Equality Act 2010 – specifically, age, disability, gender reassignment, race, religion or belief, sex and sexual orientation).

If you would like to discuss the potential impact of any of these changes on your business operations and employees, please get in touch with your usual contact in the CMS Employment team.

This article was co-authored by Ambrin McBrinn, a trainee solicitor in the CMS Employment team.