Harassment Changes Under the Employment Rights Act 2026

Significant changes to workplace harassment laws under Section 21 of the Employment Rights Act 2025 are set to come into force in October 2026. These reforms directly address employer liability for harassment committed by third parties, such as customers, clients, suppliers, and members of the public.

This overview outlines the background context, key legislative updates, exceptions, and practical implications for both employers and employees as these new protections take effect.

Background & historical context

Employers were at one stage previously liable for third-party harassment, under Section 40 (2) to (4) of the Equality Act 2010.

However, this provision was axed in 2013, by virtue of the Enterprise and Regulatory Reform Act. It would not be accurate to say that, despite this, there was absolutely no recourse for an employee/risks to an employer in the case of third-party harassment since – given potential recourse in claims of:

• Constructive unfair dismissal (on the grounds of mutual trust and confidence, e.g. by failing to address employee concerns of third-party harassment)

• Harassment (e.g. if the employer trivialised/undermined third-party harassment of a discriminatory nature, or if their failure to act on the complaint was ‘related to’ a protected characteristic – as noted by the Court in Conteh v Parking Partners Ltd – [2011] ICR 341).

That said, employees were clearly in a less favourable position as a result of the change of law, which restricted them to having to rely on circumstances such as those highlighted above to have a sort of ‘back-door’ recourse for third-party harassment, as opposed to a clear and blanket protection. This is difficult to reconcile given customer-facing staff account for 61% of the total UK workforce, representing roughly 22 million out of the 36.7 million total workforce jobs.

The new protections under section 21

It is therefore no surprise that, as far back as June 2022, there have been attempts to reintroduce employer liability for third-party harassment. After a degree of scrutiny and tribulation, resulting in the proposals being effectively shot down in 2023, Section 21 of the Employment Rights Act (expected to come into force in October 2026) will reintroduce an employer’s liability for third-party harassment.

The protection is not limited to customers/clients or suppliers, etc., but is described as applying to ‘anyone’ who is not ‘A’ (the Employer) or an Employee of ‘A’. Further, under Section 83 of the Equality Act 2010, reference to an ‘employment’ also applies to those under a contract to personally do work (i.e. zero-hour / casual workers). The protection is therefore not limited to employees only.

There is no longer a requirement for the harassment by the third party to have occurred on at least two occasions, unlike the previous law (and current recourse under the Protection from Harassment Act 1997, which applies to ‘general’ unwanted conduct as a whole, as opposed to being restricted to discriminatory conduct).

Exceptions to the rule

It is important to note that the protection is not absolute and does not apply to the following protected characteristics:

• Marital status
• Civil partnership status
• Pregnancy or maternity (though any such conduct could likely be relied on under the protected characteristic of sex, given pregnancy and maternity are ‘related to’ sex – Nixon v Ross Coates Solicitors and anor EAT 0108/10 – where gossip about the identity of a child’s biological father was held to be harassment on the grounds of sex

The ‘all reasonable steps’ defence

An employer is liable for the acts of employees during the ‘course of employment’. This is not limited to the workplace/office itself, but can apply to work-related events (such as social events, seminars, etc.) as long as there is a sufficient link between the contract of employment and the event in question.

The current defence open to employers in ‘ordinary’ claims of harassment (i.e. between employees) and third-party harassment is whether the employer took all reasonable steps to prevent the conduct from occurring (as opposed to, taking steps to address/deal with the conduct). It is therefore not enough for an employer to show that their disciplinary sanction or dismissal of an offending employee absolves their liability. However, good practice of treating such conduct with due regard and severity could amount to a practice that could count toward establishing a preventative step. In summary though, the ‘all reasonable steps’ defence is a high bar in practice, and seldom established.

Employers and employees alike must also note that the current duty to take ‘reasonable steps’ to prevent sexual harassment (a separate duty altogether) will also be modified to ‘all reasonable steps’ in October 2026.

Practical implications for employers & employees

Employers ought to note that there is a body of case law that relates to the ‘all reasonable steps’ defence and not fall victim to a ‘wait and see’ approach. The law is clear, as is the change.

Employers would be wise to consider the case of Allay (UK) Ltd v Gehlen 2021 ICR 645, EAT, in which the Tribunal found that anti-harassment/discrimination training that had been carried out just 2 years prior to the dispute was effectively ‘stale’. Doubtless, this will place additional administrative and financial burden on employers, particularly SME employers, though, just like the duty to prevent workplace harassment itself, prevention beats cure.

For employees, in the event that the employer is able to satisfy the defence, it is still entirely possible to proceed with the claims against the individual employees, or third parties. Inherent issues may arise in the latter case, with regard to the requirement for a claim to contain each Respondent’s full name and address under Rule 12 of the Employment Tribunal Rules of Procedure 2024.

In the case of a third party, especially those unknown to the Claimant, it is unclear what steps, if any, will be taken to reconcile this.

How we can help

Navigating upcoming statutory changes requires careful legal strategy to mitigate tribunal risks and protect both businesses and individuals. Our employment law solicitors provide strategic legal counsel to help employers establish robust statutory defences, align internal policies with legislative updates, and manage prospective Equality Act exposures.

To discuss how these statutory changes impact your organisation or to speak directly with an employment law solicitor, please contact our team today.