A few things you may not already know about October’s new anti-harassment reforms…

By now, most HR professionals and in-house lawyers are aware that provisions in the Employment Rights Act 2025 mean that anti-harassment laws are changing on 30 October. But beneath the headline changes sit some potentially surprising nuances that are easy to overlook. Below I take a look at some of these. 

Before I do so, a quick reminder of the changes may be helpful (see our longer article for more detail):

1. the existing employer duty to prevent sexual harassment is being strengthened so that an employer will need to take all reasonable steps to prevent the sexual harassment of their workers whilst in work – currently the duty is to take “reasonable steps”; and
2. an employer may be liable where a worker is harassed by a third party, whilst at work, if the employer had not put in place all reasonable steps to prevent the harassment from occurring. 

1. A little word with a big outcome? 

The addition of the word "all" sounds small, but this shift in terminology is likely to be significant. It means a tribunal could look at any potentially reasonable step an employer didn't take and ask why not. The Employment and Human Rights Commission's (EHRC) technical guidance on sexual harassment and harassment at work offers a useful (non-exhaustive) list of factors that may be relevant in deciding whether a step is reasonable. These may include what other steps the employer had put in place, the employer’s size and resources and the likely effect of the step in question. The recent EHRC research into workplace harassment, published in June, is also well worth a read as it investigates the causes of workplace harassment and the tools which can be used to motivate compliance and foster workplace change. 

If you do identify a potential step but decide it is not reasonable to implement, it will be sensible to document your reasoning as this could carry weight in any tribunal claim or EHRC investigation. 

2. Your risk assessment is your foundation for compliance 

The EHRC has indicated that an organisation which hasn’t got a risk assessment through which it identifies and mitigates risk will struggle to demonstrate compliance with the duty. With harassment compensation uncapped and a potential 25% uplift on awards where the duty is breached, damages in a successful claim can be very significant.

Whilst many employers will already have a risk assessment in place, if you don’t there’s still time to get this done before 30 October.

3. Expect your risk assessment to evolve over time 

Completing your risk assessment isn't a one-off exercise. Employers will need to regularly review their assessment to identify any new risks (and steps in response) as your business and operations evolve. In addition, use your review to assess the efficacy of the steps you have introduced. For example, if you have rolled out line manager training on how to respond to a complaint, have those line managers adopted the relevant protocols where a complaint has been made? If not, you may need to redesign the training. 

4. "Third party" covers…everyone 

The scope of whom the term “third party” covers is worth pausing on. "Third party" doesn't just mean customers or contractors - it covers everyone your workers come into contact with whilst at work: clients, suppliers, visitors, members of the public, conference delegates, delivery drivers and so on. 

5. Third party harassment is not just about sexual harassment – all relevant protected characteristics are in scope

This is an important point that's easy to overlook. The duty to prevent applies only to sexual harassment. However, employer liability for third party harassment applies to all relevant protected characteristics including race, disability, and age. It's worth checking whether your risk assessment addresses this broader scope, as many were originally drafted with only sexual harassment in mind.

6. “All reasonable steps” is likely to be a lower bar in a third-party context - and the government has acknowledged this

By way of some reassurance: the government has acknowledged that "the steps an employer can reasonably take in respect of third parties are clearly more limited than in respect of their employees." 

The relationship you have with, and therefore the degree of control you have over, a third party is likely to be relevant when determining whether “all reasonable steps” to prevent harassment were in place. Requiring a contracted supplier to train their staff on your behavioural standards may well be reasonable. What about expecting every restaurant diner to watch a training video on how to behave before they get their menus? Maybe not - but a note on booking confirmations that harassment of staff will not be tolerated could be. 

7. An absence of complaints doesn't necessarily mean an absence of risk

It's tempting to take comfort from a clean complaints record, but it's worth reflecting on why that might be. An absence of complaints could mean your people don't feel safe to report — particularly where the third party is a valued customer. Consider other available data such as that from surveys, and on promotions, retention and absences, which may help you to build a better understanding of the risks. Building a reporting culture where people feel confident to speak up is in itself a reasonable step.  

8. Don't forget - you're a third party too

A point worth remembering: your staff are third parties in relation to your clients' workers. This means you may start receiving requests from customers asking how you'll help them meet their own obligations - training, additional provisions in contractual arrangements, and new protocols, for example. This needn’t be a negative – it could offer the opportunity for collaboration and could be a productive way to strengthen client relationships while demonstrating your own compliance credentials.

9. And one to watch: the landscape for NDAs is shifting

The Employment Rights Act will also bring reforms to confidentiality agreements - that's worth having on your radar. Under the new provisions, any clause in an agreement that prevents a worker from speaking out about harassment or discrimination will be void. Certain agreements will be exempt if they meet the stipulated requirements and the government response to its consultation on how exempt agreements should work on the ground is awaited. 

Whilst the detail has yet to be clarified, the direction of travel is clear: employees are likely to have more control over whether confidentiality applies, will probably need independent advice on confidentiality wording, and the circle of people to whom "permitted disclosures" can be made is expected to widen. 

Through these anti-harassment reforms the government is seeking to deliver a big cultural change – it’s unlikely to be quick and some may need convincing that putting in place all these steps are really necessary. It will be interesting to see how the landscape develops – when we first started seeing signs in train stations and shops reminding people that staff should not be subjected to abuse, it was unusual – now we have come to expect them. Will our approach to proactively preventing workplace harassment become business as usual? Only time will tell. 

To find out more about what is changing, you can watch our recent webinar discussion on the reforms here. 

We have been advising employers of all sizes and across all sectors on how to comply with these incoming and all other aspects of the Employment Rights Act 2025. Please get in touch if we can help you. Don’t forget to take a look at our Employment Rights Act hub for more information about what’s changing.