What is the current situation?
Harassment is defined as unwanted conduct related to a protected characteristic (for example, age, sex, disability, race etc.) that has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment.
Sexual harassment fits the same definition as above but the unwanted conduct is of a sexual nature.
Employers have long been liable for harassment if one of their employees harasses a colleague (in respect of any of the protected characteristics) in the course of their employment. Employers have a defence only if they can show they took ‘all reasonable steps’ to prevent the employee from carrying out that harassment.
A new anticipatory duty has been placed on employers to prevent sexual harassment since October 2024. From this date, they have been required to take ‘reasonable steps’ to prevent sexual harassment of their workers in the course of their employment. The Equality and Human Rights Commission (EHRC) guidance includes examples of actions which might amount to ‘reasonable steps’. Failure to comply with the anticipatory duty can result in enforcement action by the EHRC, regardless of whether an individual brings a claim. In addition, employment tribunals can increase the compensation awarded by up to 25% where an individual brings a successful sexual harassment claim if the employer has not complied with its anticipatory duty.
Currently, employers are not generally liable for harassment if their workers are harassed by third parties, such as customers and clients. However, the position is slightly different for the anticipatory duty to prevent sexual harassment, as the EHRC guidance states that taking reasonable steps includes taking reasonable steps to prevent third-party harassment.
Currently ‘qualifying disclosures’ for whistleblowing purposes do not expressly include sexual harassment complaints.
So what’s changing and when?
From April 2026, the Employment Rights Bill will make it explicit that sexual harassment counts as a ‘qualifying disclosure’ for whistleblowing purposes.
From October 2026, the requirement in the anticipatory duty to prevent sexual harassment to take ‘reasonable steps’ will be amended so that employers must instead take all reasonable steps.
Also from October 2026, the Employment Rights Bill will make employers responsible if their employees are harassed by third parties in the course of employment and they cannot show that they took all reasonable steps to prevent the harassment. This applies to every type of harassment, not just sexual harassment.
Regulations may in future (not before 2027) set out what an employer must do to qualify as having complied with their anticipatory duty to take ‘all reasonable steps’ to prevent sexual harassment. It remains to be seen how these steps will differ from the current recommendations in the EHRC guidance on sexual harassment at work.
What you need to do now
- Check your existing policies and arrangements, including workforce and manager training, to give you the best chance of avoiding – or, if not, defending – harassment claims under the existing legislation and of easing the transition when we have clarity on the new laws.
- Examine your organisation’s culture. Is inappropriate conduct called out, or do workers fear reporting it because they think nothing will be done? Consider surveying workers to get views from your workforce.
- Review how you handle sexual harassment complaints so they are dealt with appropriately and consistently across the organisation. Ensure you have adequate support in place during the investigation process for those accused of sexual harassment, as well as for those who raise complaints. Do you have a clear way for workers to report incidents to HR, or a whistleblowing hotline? Do the people likely to receive complaints know what to do? Be aware of the reputational risks which result from how you handle complaints about harassment, not just the incidents themselves.
- Ensure you have a sexual harassment risk assessment in place for all parts of your business.
- Consider the risk of third-party harassment. Which sectors of your workforce interact with third parties and in what circumstances? Have you previously had issues with sexual or other forms of harassment of your staff by third parties? Are there any measures which you could implement now to reduce the risk?
How Make UK can help you
Whether you’re already getting support from us or you’re just starting to explore your options, we’re here to help you plan for the Employment Rights Bill changes and protect your business.
Already getting support from Make UK?
You’ll receive updates from us as key legal changes come in, so you can stay compliant and up to date.
Detailed HR and employment law guidance and template policies and letters can also be found in the HR & Legal Resources section of our website.
If you’ve got questions or need advice, your Make UK legal adviser is on hand to help, including arranging workforce sexual harassment and other harassment training, line manager training and HR policy reviews.
Our HR and legal consultants can also provide hands-on support on any projects as you prepare for these changes. This might include reviewing procedures, setting up or improving a whistleblowing hotline.
You can also shape future policy. We speak regularly with Government and feed into consultations, using input from businesses like yours.
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You don’t have to face the changes alone. Whether you need quick input or ongoing support, we can help you however works best for your business.
One-off, practical supportIf you want focused help to get ready for the changes:
| Ongoing employment law and HR support
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06/08/2025