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Third-party harassment | The return of employer liability under the Employment Rights Bill
Written by Suzie Green on 30 April 2025
In October 2024, the UK government introduced the Employment Rights Bill – a significant piece of legislation which aims to overhaul much of the UK’s employment law framework.
Among its many provisions, the Bill introduces substantial changes to harassment law. In particular, it reinstates employer liability for third-party harassment while also raising the standards for sexual harassment prevention.
Current law on harassment
The Equality Act 2010 defines harassment as unwanted conduct related to a protected characteristic – including age, disability and race – that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment.
Currently, employers can be held liable when an employee harasses a colleague – unless they can demonstrate that they took “all reasonable steps” to stop such behaviour or prevent it from occurring.
Since 26 October 2024, employers have also had an anticipatory duty to actively take “reasonable steps” to stop sexual harassment before it takes place. This proactive duty is specific to sexual harassment. The Equality and Human Rights Commission (EHRC) interprets this as extending to sexual harassment committed by clients, customers, or other third parties – and has indicated it may pursue enforcement accordingly. However, under current rules, workers are not permitted to lodge Employment Tribunal claims against their employers for harassment by third parties.
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Key changes under the Employment Rights Bill
The Employment Rights Bill introduces two crucial changes concerning third-party harassment:
Strengthened employer duties under the Equality Act 2010
The Bill amends the Equality Act to raise the threshold for employers’ responsibility in preventing harassment. The existing duty to prevent sexual harassment will change from requiring employers to take “reasonable steps” to “all reasonable steps”. What constitutes “all reasonable steps” isn’t defined. Regulations will list certain steps that are to be regarded as reasonable, but this will still leave scope for Tribunals to decide that additional steps should have been taken in the circumstances.
Reintroduction of employer liability for third-party harassment
Arguably the most impactful change, this provision reintroduces employers’ liability for harassment by third parties – such as customers, clients, or contractors – while at work. Employers will only be able to defend themselves if they can prove they took “all reasonable steps” to prevent such harassment.
This liability for third-party harassment isn’t limited to sexual harassment, and can involve discrimination based on any protected characteristic, such as age, disability, gender reassignment, race, religion or belief, sex, and sexual orientation.
When will these changes come into force?
Although the bulk of the Bill’s reforms are not expected to be enforced until 2026, the government has suggested that this particular provision may take effect as early as October 2025.
How could this impact employers?
These reforms will apply across all sectors, but they will have a particularly significant impact on industries with high levels of public interaction, such as retail, hospitality, and service roles.
A major point of uncertainty is what will be required to prove that an employer has taken “all reasonable steps” to stop harassment by third parties. While forthcoming regulations and guidance will hopefully offer some clarification, they will only serve as a baseline. Employers – especially those with larger operations – may still be exposed to Tribunal claims from employees asserting that there was something more they reasonably should have done.
Employers with customer-facing roles may face added difficulties, as they generally cannot control or anticipate the conduct of the public. Investigating third-party harassment also presents unique challenges: the accused party is under no legal obligation to take part in internal investigations or maintain confidentiality. If there’s insufficient evidence due to non-cooperation, the employer may decide that no harassment occurred – but a Tribunal might disagree if a claim is filed.
All of this marks a substantial shift from the current legal position, reinforcing the importance of prevention. Fortunately, there are concrete steps employers can take to prepare.
Preparing for change: 6 proactive steps
Ahead of these changes to third-party harassment legislation, employers could consider:
Employers must ensure workplace harassment policies reflect these new duties when they come into effect. This includes explicitly covering harassment by third parties and establishing clear reporting processes and response procedures. Policies should also outline how complaints involving non-employees will be managed and investigated.
Looking ahead: challenges and opportunities
The primary hurdle for employers will be interpreting what “all reasonable steps” really means in practice. While regulations will offer some guidance, ultimately it will be for Tribunals to determine whether enough was done in each individual case.
Employers should also be prepared to receive more claims from employees who believe they have experienced harassment by third parties.
That said, by implementing the strategies outlined above, businesses can better protect their employees, reduce their legal risk, and create a safer working environment – aligned with the spirit and requirements of the new legislation.
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Tackle workplace harassment with WorkNest
At WorkNest, we help employers stay compliant and confident in the face of legal change. With new legislation introduced last October and third-party harassment liability set to return, are you prepared to meet your new responsibilities?
Whether you’re facing an immediate issue or looking to take proactive steps, our Employment Law and HR experts can support you with practical advice on your new obligations, assist with handling complaints, deliver targeted training, and ensure your policies are watertight.
To protect your people – and your organisation – get in touch today on 0345 226 8393 or request your free consultation using the button below.
