UK employers must ready themselves for new workplace harassment duties

From 30 October, the ERA will strengthen protection in two important ways. Employers must take all reasonable steps to prevent sexual harassment, raising the existing standard, and they may face express liability where a third party harasses an employee in the course of employment, and they cannot show that they took all reasonable steps to prevent it. The third party harassment provisions go beyond sexual harassment and cover harassment linked to age, disability, race, religion, sex, sexual orientation, or gender reassignment.

• Read more: what the Employment Rights Act means for your business

Compensation for third party harassment is unlimited and failure to meet the sexual harassment duty may lead to an uplift of up to 25% in tribunal compensation, regulatory enforcement by the Equality and Human Rights Commission (EHRC) and reputational damage.

Employers should treat readiness as a prevention and culture exercise, rather than focusing mainly on how they investigate complaints after an incident. The question being asked after an incident will go beyond “what happened?” to “what did we know about this type of scenario, and what did we do about it?”. The employers best placed to respond will be those that have assessed and documented risks with a view to promoting a workplace culture in which harassment by colleagues and third parties is actively prevented and promptly addressed. 

Refresh and document risk assessments

Employers should review their current sexual harassment risk assessments and expand them to address third party harassment across relevant protected characteristics.  The assessment should map who interacts with employees, where those interactions occur and which roles, locations, working patterns or events create heightened risk. It is also important for employers to factor in online communications, remote working, travel, social events and customer-facing environments.

Risk assessments should not be a one-off exercise. Organisations should ensure they keep evidence showing how the organisation has identified risks, implemented controls and tested whether they work on an ongoing basis.

Update policies, procedures and responsibilities

Policies should explain the stronger harassment laws, expressly cover third party conduct and make clear that one incident may be sufficient. Employers should use practical examples relevant to the organisation, identify reporting and escalation routes, and explain the support available to affected employees.

Senior leaders should own the prevention framework, with clear responsibilities for human resources (HR), managers, procurement teams and those managing sites or third party relationships.

Prioritise trauma-informed investigation arrangements

The EHRC have been clear that those investigating incidents of harassment need to be suitably qualified.  An essential skill is understanding trauma and the impact on those involved.  Trauma may affect memory, behaviour and communication. Investigators should not treat fragmented recall, emotional presentation or a non-linear account as evidence of unreliability. 

Employers should ensure that those investigating are impartial and trauma-informed.

Investigators should apply trauma-informed principles, including safety, trust, collaboration and choice, and guard against biases that favour a polished account over a hesitant one. 

Reports should use neutral language and test inconsistencies against all available evidence. Employers should also support investigators exposed to difficult material. A trauma-informed approach can reduce bias and produce more defensible findings.

Strengthen training and workplace culture

Employers should refresh training for both employees and managers so that it addresses the “all reasonable steps” standard, third party scenarios, safe bystander intervention and the practical response expected when concerns arise. Generic or infrequent training may not demonstrate that preventative measures operate effectively in practice. 

Employers may complement training with active cultural diagnostics. These may include staff surveys, exit information, reporting data and focus groups. Leaders should model expected behaviour and reinforce that retaliation or victimisation will not be tolerated.

Address supply-chain and commercial risks

Where customer, supplier or agency workforces interact, both sides should assess risks before services begin and keep arrangements under review. Procurement documents and contracts may need obligations covering conduct standards, training, information sharing, preventative measures, incident reporting, cooperation when allegations arise and allocation of liability. 

Existing contracts also deserve attention because harassment after 30 October may create exposure even where the commercial relationship began earlier. Employers may be able to adapt controls already introduced for sexual harassment to address wider third party risks.