Changes in the Employment Rights Bill will enhance the duty on employers to prevent sexual harassment by their ermployees’ says Claire Simon, Partner, in the employment team with QualitySolicitors Parkinson Wright. ‘The Bill will also make employers liable not just for sexual harassment of employees by colleagues but also by customers and other third parties. Employers need to be ready for this because a wide range of behaviours can constitute sexual harassment and the behaviour does not have to be directed at an individual to be harassment.’
Claire looks at the existing law, the new obligations and other expected changes, and what employers should be doing to get ready.
What is sexual harassment?
Sexual harassment is unwanted conduct of a sexual nature that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. When looking at the effect of the conduct, employment tribunals take into account the individual’s perception.
A wide range of behaviour can be sexual harassment. Examples include sexual jokes or comments, displaying or sharing sexually graphic images, questions about an individual’s sex life or talking about their own sex life and unwelcome physical contact.
What are the implications for employers?
Employers can be liable for their employees’ actions, even if they did not know about them. They can face having to pay damages for injury to feelings or even personal injury, for instance if the harassment causes or exacerbates mental health problems.
Employers should also be aware that failing to protect an employee from sexual harassment could lead to a successful claim for constructive dismissal.
Is there a defence?
If the employer can show that they took ‘all reasonable steps’ to prevent the sexual harassment, they will not be liable. To establish this defence, employers need to do more than have appropriate policies in place.
How will the employer’s duty change?
Employers currently have a duty to actively take ‘reasonable steps’ to prevent the sexual harassment of employees. The Bill will change this to ‘all reasonable steps’. The Government consulted on this and regulations are expected to give details on the requirements of this wider duty. These are likely to include risk assessments, publishing policies or action plans, and having procedures for reporting and investigating complaints of sexual harassment.
Failure to comply with this duty will risk an employment tribunal adding an uplift of up to 25% to compensation awarded to an employee and an investigation by the Equality and Human Rights Commission.
Liability for third party harassment
The Bill will make employers liable for third party harassment of their staff in the course of their employment. Employers could be liable for a one-off incident. Employers will also have a duty to take all reasonable steps to prevent sexual harassment by third parties, although the expectations may be lower than for colleagues because they have less control over third parties.
These are significant changes, particularly for businesses with staff in customer-facing roles or working with the public, contractors or partner organisations.
Whistleblower protection
One further layer of protection will be given to workers and employees who disclose that they have been subjected to sexual harassment. Changes expected from April 2026 will give them the same legal rights as whistleblowers have in relation to detrimental treatment and unfair dismissal.
Changes to non-disclosure and settlement agreements
Agreements that prevent employees from discussing any allegations of harassment will be banned. No date has been given for this change and further details are expected but these changes could prevent employers from entering a settlement agreement with an employee to avoid an employment tribunal claim for sexual harassment.
A new law has already come into force on 1 August 2025 which prevents higher education providers from entering non-disclosure agreements with staff and students in relation to allegations of sexual harassment.
How to get ready
The changes to the duty to prevent sexual harassment are expected to come into force in October 2026, but any regulations setting out the detail would come later. Employers will be grappling with a lot of big changes to employment law over the next couple of years. Changing practice and workplace culture now will ensure you are not caught on the back foot. We can advise you on the most effective measures that you can take to protect your organisation, such as:
- provisions in contracts with third party suppliers;
- policy statements on websites and signage;
- risk assessment, risk prevention, monitoring of high-risk situations and strategies for staff to seek support, such as use of code wording;
- education and staff training, including training managers on handling situations with customers and other third parties;
- clear and robust policies and effective implementation of policies;
- supportive reporting and investigation mechanisms; and
- fostering a zero-tolerance culture.
How we can help
We give practical and bespoke advice to ensure you can take effective steps now to prepare for these changes and minimise risk to your business.
For further information, please contact Claire Simon or a member of the employment team on 01905 721600 or email worcester@parkinsonwright.co.uk
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.