Active bystander to the fore as sexual harassment laws tighten

The legal stakes around workplace sexual harassment are rising again. The Employment Rights Act is now in force with a raft of further changes on the way, raising the bar on what employers are expected to do to prevent harassment, not just respond to it.

Under the Act, sexual harassment will be explicitly recognised within the whistleblowing framework from April 2026, giving stronger protection to those who raise concerns. From October 2026, employer liability for harassment by third parties will also be reintroduced, alongside the higher standard requiring employers to take all reasonable steps to prevent sexual harassment.

But new data suggests many employers aren’t ready. As Legal Futures reports, research by VinciWorks shows nearly half of UK professionals aren’t confident their employer can prevent sexual harassment, with one in five saying there’s no training in place at all, and when it comes to active bystander training – that’s to say, training designed to stop problems early – just 16% say their organisation offers it. We’ll speak to a diversity expert about active bystander training and why it can help.

As the survey shows, while most organisations say they plan to do more, significant gaps remain. A sizeable minority provide no sexual harassment training at all. Fewer than half rate the training they receive as good or excellent and active bystander training – the kind designed to deal with everyday behaviour – remains the exception, not the norm.

As diversity expert Kieron O’Reilly explains in his article for Out-Law, unlike traditional harassment training which focuses on what to do after something has gone wrong, active bystander training equips people to recognise problematic behaviour as it happens and intervene safely in real time – a crucial shift in an area where most harm arises from everyday conduct that rarely reaches a formal complaint stage.

Since the Worker Protection Act came into force in October 2024 which introduced a duty for employers to prevent sexual harassment of their workers, there has been a steady increase in reports of workplace sexual harassment in the UK and that is set to rise further with the various new rights being introduced by the Employment Rights Act, all of which puts active bystander training centre stage. So, let’s hear more about it and how it can help. Kieron O’Reilly is a diversity expert with Pinsent Masons’ D&I consultancy, Brook Graham, and earlier he joined me by video-link to discuss it:

Kieron O’Reilly: “I think the rise in the numbers has been quite sharp - Acas numbers have shown a very, very strong increase in the reporting - and I think the reason for this is because of the building of trust, so that basically means people feel safer to report it. So these issues have been there for some time and now we're starting to see these measures that have been put in place, these reasonable actions, are starting to be seen by employees as things they can trust so they are beginning to report. Now, of course, the fact they're reporting is not necessarily great in itself, because it means there's been an issue, but the fact that there is the trust to report - and these things have been going on for some time, it's not that these are new - but difference is people are starting to report them, and that's the that's the big change that we're seeing since the new piece of legislation was amended. The position it puts on active bystanders is quite a good one in some respects because individuals who are doing the training around active bystanders are now feeling confident to support others and that is building trust. So what we're seeing is that individuals are feeling more confident to support others, are able to understand what they need to do but, critically, they can look after people who they feel need some support, and as a result we're seeing the reporting numbers increase.”

Joe Glavina: “Why is this form of training so important in that context, as opposed to traditional harassment training?”

Kieron O’Reilly: “If we think about it from the points of view of sort of typical approach we take to policies, HR type policies, a lot of them are based on prevention. In other words, the policies are in place to inform people of their expected behaviours, and also the disciplinary procedures. They're all clearly stated and are clearly given to individuals when they start. This amendment changes that quite significantly and that puts an onus, if you like, on the employer to prevent harassment and that's the difference now, in that we're looking at the reasonable steps prevent. So it's a whole sort of sea change, if you like, in the approach that HR needs to take with the policy and also how they go about meeting the Equality and Human Rights Commission, the body that polices, effectively, this amendment. That has been a big change, and I think that's taken people a little bit by surprise, if you like, in as much as it's a very different way of looking at things. Fortunately, the EHRC has all the steps in place for you to follow, so all employers have got the guidance, and I think what we're now seeing is that those very specific steps that are being given describe what may be reasonable in proportion to the organisation you're in. So what does that mean, really, that we're seeing for the training? Well, the awareness training up until now will have been more to do with this is what harassment is, and this is the policy. Reasonably, to prevent it, you need to go beyond that, and this is where the training becomes much more active. It's action focused and it takes people beyond awareness and into an understanding of how to recognise what harassment is, what to specifically do about it, and to be empowered to take those steps. That means that you're going beyond awareness, into reasonably expecting people to have the confidence to take action when they see harassment and to report it effectively, and that's the reasonable difference that we're seeing.”

Joe Glavina: “What are you and your colleagues at Brook Graham currently doing with clients on this, Kieron?”

Kieron O’Reilly: “So typically, what we're seeing is, before we get to the training, there's a range of steps that the Equality Human Rights Commission have provided as guidance and one of those is to carry out a risk assessment. That’s a harassment or sexual harassment risk assessment, an audit of sorts, which has been the first step I think many organisations have taken, and most by now will have done so. Within that it provides you with a wealth of information of where you might want to consider taking actions to prevent harassment which plays very clearly into the training because what is really special about this training is that it's about prevention, and we're seeing a very different response to people who are attending this training than before. Typically, unfortunately, if incidents of this nature would occur, learnings must be made, as is right, and of course training will often be put in place and the response you used to get to this kind of training in the past was a lot of people flet they were in a room because of other people's poor behaviour, and they were having to training because of it. The fact that now people are there as prevention, there is no issue, and people have been asked to work together with the organisation, or their employer, to help prevent, it creates a very different dimension. So to make that work, the training itself will be very much focused on the environment in which they work, the job roles that they have, and that could be from working on an oil rig - recently, I've been working with people on a factory floor right through to corporate environments - and then also taking into consideration the sector they're working in, and the environments that they work in, so that the training is very specifically set to their working environment, to the ways of working that they have, but also, importantly, creating action-based scenarios that are based on their working experience. It makes it very real, and because the cases that we're working with are not of the organisation, but are very realistic based on what we've seen in the past, it allows people to engage in what are very challenging situations, not always comfortable and deliberately so, so that once people have been given the information they need to recognise what harassment is and then to know how to actively take steps to do something about it, we then give them those case scenarios which are uncomfortable, but gives them time to practice those things. The purpose really is to create that overall confidence in seeing it and knowing what to do about it and the action they can take, and we're finding that is really quite powerful. If you couple that with the idea that people are there because it's about prevention, that's really enabling people, and then you give them those tools to do something about it when they see it and to recognize it confidently, we're seeing people really get engaged with this training and going away with very confident approaches to dealing with the future and it's really starting to change behaviour. So it's been quite powerful in the fact that it's action-based training.”

Joe Glavina: “Are you finding it’s difficult for your clients to find the budget for this training or, given the scale of the risk, are they pushing at an open door? Or is it somewhere in between?”

Kieron O’Reilly: “Somewhere in between, funnily enough, because you've got organisations who are very confident in knowing how to assess the risks that this presents. For example, typically organisations that operate very strong health and safety procedures - so construction, engineering, energy and so on - are very used to running safety hazard risk assessment and processes. So those organisations understand it very quickly, and those are the ones that have moved very quickly into signing off budget and because of the nature of the training starts from the very top and since the responsibilities that come with this amendment also sit very clearly with leadership it means that those leaders are very quick to engage and the budget itself isn't necessarily one of a challenge. For other areas there is this consideration where getting a good understanding of the benefits of the training and, in particular, risk mitigation and how this actually contributes in many ways to high performance teams on the basis that what we're doing here is we're creating a situation for people to have conversations with each other which they might not typically have. That for us, we've seen as a generational barrier and one of the challenges is having those people work together really well on an intergenerational basis and this communication has really engaged that. So we're seeing trust increase, we're seeing the areas around people wanting to leave teams, attrition as we call it, dropping. So once we see that there are several layers of benefit beside the compliance with the amendment, people are engaged quite quickly, and budget tends to be set quite clearly.”

If you think this type of training might benefit your organisation then please do reach out to Kieron – his details are there on the screen for. Alternatively, of course, you can contact your usual Pinsent Masons adviser.