As part of our series of updates exploring the implications of the Employment Rights Bill (the Bill), we consider the three provisions that relate to harassment.
| Current position | Position under the Bill |
| No liability for harassment by third parties | Employers will be liable for harassment by third parties |
| Employers have a duty to take “reasonable steps” to prevent sexual harassment in the workplace. | Employers will have to take “all reasonable steps” to prevent sexual harassment in the workplace. |
| Reporting sexual harassment may amount to a disclosure qualifying for protection under whistleblowing legislation. | The relevant legislation will be amended to state expressly that disclosure that sexual harassment has occurred, is occurring or is likely to occur, is a qualifying disclosure. |
Liability for third party harassment
Prior to October 2013, employers were liable in some circumstances for harassment of their employees by third parties. An employer was liable only where it knew that a third party had harassed the employee on at least two occasions. Those provisions were repealed in October 2013 but now the Bill seeks to reintroduce employer liability for harassment of employees by third parties.
The Bill’s provision covers harassment on the grounds of any relevant protected characteristic, not just sexual harassment. The relevant protected characteristics for the purposes of harassment are age, disability, gender reassignment, race, religion or belief, sex or sexual orientation. Harassment related to marriage and civil partnership, or pregnancy and maternity, is not covered, but harassment because of these protected characteristics is likely to give rise to a claim of harassment on the grounds of sex or sexual orientation.
Liability will only arise where the employer has failed to take “all reasonable steps” to prevent the third party from harassing the employee. There will be no “two strike” rule as there was under the pre-October 2013 legislation.
In advance of the new liability taking effect, you should carry out an assessment of the risks of third parties harassing employees and take steps to mitigate those risks.
Duty to prevent sexual harassment in the workplace
The Bill will also strengthen the new duty to take reasonable steps to prevent sexual harassment in the workplace, which came into effect on 26 October 2024. For now, you only have to show you have taken “reasonable steps”, but this will change to taking “all reasonable steps” when these provisions in the Bill come into force, which will be no earlier than 2026.
In the meantime, ensure you have taken reasonable steps to prevent sexual harassment in the workplace and pay particular attention to assessing the risk of sexual harassment by third parties so that you are well placed to defend any claims when the new liability for harassment by third parties takes effect. For more information on the existing duty, see our recent insight and blogs.
The Bill will also give the government the power to make regulations setting out what steps are to be regarded as “reasonable” for the purposes of this duty. The Bill sets out a non-exhaustive list of the type of steps regulations might cover, such as:
- carrying out assessments of a specified description;
- publishing plans or policies of a specified description;
- steps relating to the reporting of sexual harassment; and
- steps relating to the handling of complaints.
Any ensuing regulations will be non-exhaustive, so employers will still have to take all other steps that are reasonable in the particular circumstances. The types of steps foreshadowed in the Bill mirror those set out in the Equality and Human Rights Commission’s updated technical guidance. Taking steps now to implement and follow this guidance will stand you in good stead when the obligation to take all reasonable steps takes effect. These changes emphasise that preventing sexual harassment is an ongoing process and not a tick-box exercise that employers should complete and may then forget about.
Whistleblowing protection
The final provision in the Bill relevant to harassment will provide workers who report sexual harassment with the same protections as other whistleblowers. The Bill will amend the existing whistleblowing legislation to specify that a disclosure that sexual harassment has occurred, is occurring or is likely to occur, is a disclosure qualifying for protection. It is likely that a sexual harassment complaint would already fall within one of the other types of qualifying disclosure (e.g. breach of a legal obligation or danger to health and safety) but this amendment will put the matter beyond doubt.
We recommend treating anyone who raises a sexual harassment complaint in the same way as a whistleblower – do not wait for this amendment to come into force. You may need to train managers so that they are aware that workers who report sexual harassment most likely do and, from 2026, will benefit from the same protections as other whistleblowers.
As with most of the measures in the Bill, these provisions are likely to come into effect in 2026. However, with the new duty to take reasonable steps to prevent sexual harassment in the workplace now in force, employers cannot afford to wait until then before taking action in this area. You can read our overview of all the key measures in the Bill here.
