Employment Rights Act: Preparing for change: New harassment measures extend protections for employees

19 March 2026 8 min read

By Katie Davies

At a glance

From October 2026, employers must take all reasonable steps to prevent sexual harassment and harassment by third parties.
Sexual harassment will become an express qualifying disclosure for whistleblowing purposes from April 2026.
Employers will face standalone tribunal claims for failing to prevent third‑party harassment.
Non disclosure agreements restricting disclosures about harassment or discrimination will be unenforceable, subject to limited exceptions.
While remedies for sexual harassment remain unchanged, compensation uplifts of up to 25% will continue to apply for non‑compliance.

Protection of employees from harassment, and sexual harassment in particular, has been a dynamic area in recent times and a clear area of focus for the current government.

In October 2024, the new duty to take reasonable steps to prevent sexual harassment in the workplace took effect, imposing wide-ranging and onerous obligations on employers to protect their employees through proactive steps. For further details, see our earlier article.

Now the Employment Rights act 2025 (ERA) seeks to go further. The latest government roadmap provides that from October 2026, employers will have a duty to take all reasonable steps to prevent:

Sexual harassment of employees.
Harassment of employees by third parties.

From April 2026, sexual harassment will also be expressly included as a ‘qualifying disclosure’ for the purposes of whistleblowing protection.

Further, the ERA will also prevent employers from enforcing NDAs which prevent workers from making disclosures relating to harassment and discrimination. However, this provision does not yet have a scheduled commencement date.

Sexual harassment of employees

For nearly 18 months, employers have already been required to take reasonable positive preventative steps to protect their employees from sexual harassment. The Equality and Human Rights Commission published an update to their technical guidance to assist employers with this duty. Its guidance is significant in scope, indicating that employers should take a large number of measures including undertaking risk assessments, having the means to detect harassment in the workplace, embedding comprehensive policies and procedures, and implementing effective training programmes.

It is difficult to see what the extension in the duty to take all reasonable steps actually adds to this. In practical terms, it may just be semantics. However, what is clear is that employers will not be able to omit taking any step to prevent sexual harassment which could be deemed a reasonable one to have taken.

Unhelpfully, new regulations setting out the steps that are to be regarded as reasonable, are not due to come into effect until 2027, resulting in a significant gap in information to help employers fully understand their obligations, and potentially hindering confidence when determining the right approach. However, while the regulations must be awaited (and will be subject to consultation before coming into force), the ERA provides that they will cover:

Carrying out assessments of a specified description.
Publishing plans or policies of a specified description.
Steps relating to the reporting of sexual harassment.
Steps relating to the handling of complaints.

Therefore, an employer that wants to show that it has taken all reasonable steps must take the steps set out in the regulations, as well as all other preventative steps that it is reasonable for them to take in the particular circumstances. In this regard, a comprehensive risk assessment is likely to remain the cornerstone of compliance and be pivotal in an employer being able to demonstrate both that it has identified what the risks are in their workplace, and that they have then taken all reasonable steps to prevent them occurring. In identifying the risks, employers should be prepared to adopt a critical approach and take a hard look at their current culture and working practices.

Notably, however, the remedy for non-compliance has not changed. A breach of the duty will not enable employees to bring a standalone tribunal claim; instead it remains something which will be taken into consideration in the event that an employee’s sexual harassment claim is successful and compensation is awarded. In these circumstances, it is possible that the awarded compensation will then be uplifted by up to 25%.

Harassment by third parties

Protection from harassment by third parties is set to have a new lease of life after its chequered past (firstly being repealed in 2013, and then being omitted from the Worker Protection (Amendment of Equality Act 2010) Act 2023).

A ‘third party’ is someone who is not the employer or one of its employees. It will include customers, clients and contractors, amongst others.

Employers will be liable if:

The third party harasses the employee in the course of their employment with the employer.
The employer failed to take all reasonable steps to prevent the third party from harassing the employee in the course of their employment.

Importantly, this protection is not limited to sexual harassment. It also includes harassment relating to any of the following protected characteristics: Age; disability; gender reassignment; race; religion or belief; sex; sexual orientation. It also covers harassment because someone has either submitted to, or rejected, sexual harassment or harassment related to sex or gender reassignment.

There is no requirement for there to be a pattern of harassment (unlike the three-strikes rule under the pre-2013 legislation). This means that the very first instance of harassment can lead to liability for an employer.

Unlike a breach of the preventative duty to take all reasonable steps to prevent sexual harassment, a failure to take all reasonable steps to prevent third party harassment will be a standalone claim. Employees will be able to bring a claim in the employment tribunal seeking a remedy (usually compensation) in the same way as other discrimination or harassment claims.

There is no doubt that this new duty places significant new obligations on employers, and will be particularly keenly felt by those operating in sectors where staff frequently come into contact with third parties, such as hospitality and retail. It will also extend to less obvious scenarios such as employees coming into contact with people employed by another employer within a shared or communal office space.

Employers will need to fully map out all the reasonable steps that they can take to prevent any third-party harassment. As a minimum, this is likely to include clear signage and the empowering of employees to report any concerns and managers to take action but, in some cases, may ultimately involve quite significant measures such as barring customers or terminating third-party relationships. Employers will need to be ready to action potentially difficult or sensitive measures to show that they have satisfied their obligations to protect employees.

Qualifying disclosures: Sexual harassment

Section 43B Employment Rights Act 1996 will be amended to include a disclosure that sexual harassment ‘has occurred, is occurring or is likely to occur‘.

Arguably, sexual harassment disclosures are already within the ambit of whistleblowing protection; however, their express inclusion removes any ambiguity.

Otherwise, the usual rules relating to whistleblowing continue to apply. For example, it will still be necessary for the worker to demonstrate that they reasonably believe that the disclosure is made in the public interest and there are limitations as to whom the disclosure can be made in order to achieve full protection.

Non-disclosure agreements

The ERA will insert a new provision into the Employment Rights Act 1996 which will make void any provision in an agreement between an employer and a worker to the extent that it prevents the worker from alleging, or disclosing information relating to, harassment or discrimination, or the employer’s response to that harassment or discrimination or the allegation/s. The harassment or discrimination must have been experienced by the worker or one of their colleagues, or be committed by the employer or a fellow worker.

However, there will be an exception to the invalidity of an NDA where the agreement is an ‘excepted agreement’. This might include, for example, when the worker themself wants confidentiality to be maintained.

There will be a consultation process over what will amount to an ‘excepted agreement’, including on the types of bodies that a worker can still disclose discrimination or harassment to, notwithstanding that they have signed an excepted agreement.

Following the consultation, the full details of this provision will be set out in regulations. It is not planned that this measure will have retrospective effect.

Key takeaways

The extension in protection of employees from harassment and sexual harassment is significant. Employers will need to adopt a comprehensive strategy which is likely to include:

Fully familiarising themselves with the EHRC’s technical guidance.
Implementing and regularly refreshing an anti-harassment risk assessment.
Reviewing, updating and regularly refreshing:
- Anti-harassment policies (specifically ensuring third party harassment is covered).
- Grievance policies and procedures.
- Disciplinary policies and procedures.
- Whistleblowing procedures.
Actively monitoring policy compliance on an ongoing basis.
Implementing a regular anti-harassment training programme where attendance is monitored and enforced. Training should cover the full spectrum of the workforce, from new starters, to existing employees, managers and senior leadership.
Ensuring employees and managers are empowered to act and take effective action where harassment is experienced, observed or reported.
Providing adequate opportunities and ways for employees to raise concerns or complaints, and effectively and regularly communicating those avenues of redress.
Reviewing and refreshing signage visible to third parties regarding protection of employees from harassment.
Reviewing and updating contractual terms with third parties.
Role-modelling behaviours at the highest levels of the organisation.
Reviewing any existing confidentiality terms in current standard settlement agreements.