Employment Law Digest September 2025: Employment Rights Bill: Harassment update

Definition of harassment

Whilst most people have, at one point or another felt a little harassed, harassment has a very specific meaning under the Equality Act.  Section 26 of the Equality Act 2010 sets out the three different types of harassment that the legislation prohibits:

• General harassment: unwanted conduct related to a protected characteristic (age, disability, gender reassignment, race, religious/philosophical belief, sex and sexual orientation but not marriage/ civil partnership) which has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person;
• Sexual harassment: unwanted conduct of a sexual nature which has the purpose or effect outlined above; and
• Harassment due to the rejection of or submission to conduct of a sexual nature: A person submits or rejects unwanted conduct, which has the purpose of effect outlined above, and is of a sexual nature or which is related to gender reassignment or sex and the person is treated less favourably than they would have been had they not rejected or submitted to the conduct.

Sexual harassment

Currently a worker can bring a claim against their employer if they are harassed by a fellow employee but not by a third party.

With effect from 24 October 2024, and in relation to sexual harassment only, the legislation was amended so that employers were liable for sexual harassment carried out by third parties such as contractors, customers etc.  The amended legislation also created a new duty on employers to ‘take reasonable steps’ to prevent their employees from being sexually harassed by a third party during the course of their employment.  This meant that employers have to proactively prevent sexual harassment, including by reviewing previous complaints of harassment, conducting a risk assessment and taking steps to reduce the likelihood of harassment, including by training staff, updating harassment policies and, where necessary, displaying anti-harassment notice in places frequented by third parties etc.

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Employment Rights Bill changes

The Employment Rights Bill seeks to:

1. Make employers liable for all three types of harassment committed by third parties, not just sexual harassment;
2. Change the Equality Act so that the duty to prevent sexual harassment is extended to a duty ‘to take all reasonable steps to prevent third party harassment’ and extend this duty to all types of three types of harassment. This will result in the law being simplified in that liability for third party harassment will apply to all types of harassment, not just sexual harassment. It will also mean that the employer’s proactive duty to ‘take all reasonable steps to prevent harassment’ will match the statutory defence (currently, employers are able to defend claims by demonstrating that they took all reasonable steps to prevent this, known as the statutory defence); and
3. It will also introduce the power to make regulations which specify what steps are to be regarded as reasonable for the purposes of determining whether an employer has taken all reasonable steps for the purposes of the proactive duty and the statutory defence. The draft legislation suggests that this could be a risk assessment, publishing plans or policies or steps relating to the report and handling of complaints.

Timescales

The government has now produced a roadmap of when it expects the various changes to take effect.  The roadmap states that, in October 2026, the extended duty to prevent all types of third-party harassment and the duty to take ‘all’ reasonable steps to prevent harassment by third parties will come into force.

In 2027 the government will create a power to create regulations which specify what steps will be regarded as ‘reasonable steps’ in relation to sexual harassment.

If you have any queries please contact your usual legal advisor, or for further information contact our Employment Team.