Businesses face new harassment duties before rulebook is ready

Businesses will be required to meet significantly tougher workplace harassment duties from 30 October - despite regulations setting out the specific steps employers may be expected to take not yet being in place, employment lawyers at Irwin Mitchell have warned.

Under the Employment Rights Act 2025, businesses will be required to take “all reasonable steps”, rather than “reasonable steps”, to prevent sexual harassment of employees. They could also be liable when employees are harassed by customers, clients, patients, contractors or other third parties if they failed to take all reasonable steps to prevent it.

The third-party protection is broader than sexual harassment and covers harassment related to protected characteristics including age, disability, race, religion or belief, sex, sexual orientation and gender reassignment.

However, while the new legal duties take effect on 30 October, regulations specifying steps that may be regarded as reasonable are expected to follow later.

Section 22 of the Act gives the government power to specify measures such as workplace assessments, policies, reporting arrangements and complaint-handling procedures. An earlier government impact assessment acknowledged that significant further policy development and consultation would be needed before the detail could be determined.

The government has said it will consult on the measures employers will need to take to satisfy the "reasonable steps" requirement before introducing detailed regulations. However, those regulations are not expected to come into force until 2027/28.

Elaine Huttley, National Head of Employment law at Irwin Mitchell, said:

“Employers face a significantly more demanding legal standard from 30 October, but the more detailed regulatory framework intended to help define the steps they may need to take will come later.

 

“Businesses are not entirely without direction. Acas has published some practical advice and existing EHRC guidance contains useful principles on preventing sexual harassment. However, the EHRC material was last updated in September 2024 and employers must now apply those principles to an expanded duty and a much wider range of third-party behaviour.

 

“The challenge is that what amounts to ‘all reasonable steps’ will depend heavily on the organisation. A hotel, retailer, hospital or care provider may face very different risks from a professional services business, while smaller employers will have different resources available to them.

 

“Businesses must therefore make important decisions about the risks that exist in their organisations by completing robust risk assessments, taking steps to reduce these, training their staff, and making sure their reporting arrangements are sufficient. They will also need to consider how they will respond if customers, clients, suppliers or other third parties harass their staff, including whether existing commercial relationships can continue in those circumstances.”

Employers that get this wrong could face employment tribunal claims and potentially uncapped compensation covering injury to feelings and financial losses. In successful sexual harassment cases, compensation can also be increased by up to 25% where the preventative duty has been breached. The EHRC can take separate enforcement action.

Elaine added:

“The absence of detailed regulations is not a reason to delay. Employers should start preparing now rather than waiting for further guidance.

 

“Crucially, they should record the steps they have considered and why any measures were judged unreasonable or disproportionate. That evidence could be vital if their approach is later challenged.”