By Jo Seery, Professional Support Lawyer
In this week’s article on the Employment Rights Act 2025 we look at changes to the law on harassment in the workplace which are due to come into force in October 2026. These changes will mean that employers will be liable for the harassment of workers by third parties.
The current position
Employees are protected from harassment when at work. Harassment occurs when a person engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of violating a worker’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Unwanted conduct is not defined in the Equality Act 2010. The Equality and Human Rights Commission (EHRC) Code of Practice on Employment at paragraph 7.7 states that this includes a wide range of behaviour including spoken or written words or abuse, imagery, graffiti, physical gestures, facial expressions, mimicry, jokes, pranks, acts affecting a person’s surroundings or other physical behaviour. Sexual harassment includes conduct of a sexual nature –[see box].
Employers are liable for harassment committed by their staff against colleagues. However, they have a defence to a legal claim for harassment if they can show that they took all reasonable steps to prevent the harassment from taking place.
Since 26 October 2024 employers have been required to take reasonable steps to prevent sexual harassment including sexual harassment by third parties in the workplace. Guidance from the EHRC on the preventative duty states that, “Employers should not wait until an incident of sexual harassment has taken place before they take any action” and recommends employers assess the workplace which give rise to a risk of sexual harassment occurring. This might include where there is lone or night working for example. However, only the EHRC can take enforcement action for a breach of the preventative duty. There is no free-standing right for an individual to bring a claim against the employer if they failed to prevent third party harassment. Since 2013 an individual claim could only arise if the reason the employer failed to protect the worker from harassment by a third party was related to the worker’s protected characteristic. In practice, this has been hard to prove.
Changes
From 1 October 2026, employers will be liable for a single act of third-party harassment where it occurs in the course of employment and the employer has failed to take all reasonable steps to prevent it. A third party means anyone who is not the employer or one of its workers such as a client, customer or service user. Harassment includes a relevant protected characteristic not just sexual harassment.
Impact of the changes
These changes will likely have the greatest impact on service sectors, particularly hospitality, but also other service sectors where staff are exposed to the public and service users such as those working as carers and in the NHS.
Employers should prepare for these changes by reviewing and updating their harassment policies to reflect the new duty. Focus should be placed on ensuring that all staff, including managers, understand how to respond to and report allegations of third‑party harassment. Employers will need to provide training and practical guidance for staff who regularly interact with clients and service users.
Employers should seek copies of risk assessments as well as policies and procedures from suppliers and other businesses where workers may be required to work, in order to comply with the duty to prevent third-party harassment. There will also need to be joined-up practices between employers and suppliers and other businesses so that workers and third parties are informed that any harassment of staff will not be tolerated. This may range from putting up notices to accessible guidance on how and to whom workers exposed to third party harassment can report it to.
The EHRC states that the purpose of the preventative duty is to transform workplace cultures so that sexual harassment including by third parties is not tolerated. Liability for claims for third-party harassment should encourage employers to take preventative measures to reduce the risk of harassment by third parties. In particular, overheard conversations between customers or visitors which amount to harassment may also create liability if the employer cannot show they took reasonable steps to prevent such behaviour.
It is hoped that these changes will encourage employers to be more proactive in tackling and preventing workplace harassment so as to ensure workplaces are free from harassment and workers have a safer place to work.
Conduct of a Sexual Nature
The EHRC Code of Practice on Employment lists the following examples of conduct of a sexual nature which is unwanted. The list is illustrative, not exhaustive.
|
