Imminent changes to workplace harassment laws could expose businesses to significant risk.
From October 30, 2026, employers’ duty to prevent sexual harassment will be strengthened, while new protections against harassment by third parties will also take effect.
Employers will be required to take “all reasonable steps” to prevent sexual harassment, replacing the existing duty to take “reasonable steps”.
The reforms also introduce employer liability for harassment by third parties, including customers, clients, contractors, service users and members of the public.
WHN Solicitors’ Head of Employment Law, Rudy Fendlen explains more:
The changes
Third-party protection applies to harassment connected to protected characteristics including race, sex, disability, religion or belief, age, sexual orientation and gender reassignment. It also covers sexual harassment.
For businesses whose employees regularly interact with customers or the public, the changes could be significant. That does not mean employers are expected to prevent every incident from occurring. The key question will be whether reasonable preventative measures were available and should have been taken.
Stronger protection for employees who speak up about sexual harassment came into force on April 6, 2026, with sexual harassment now expressly recognised as an issue which can form the basis of a protected whistleblowing disclosure.
Where the requirements for a protected disclosure are met, workers have additional legal protection when raising concerns about sexual harassment. If they are subjected to a detriment for speaking up, the employer could face separate whistleblowing claims in addition to harassment allegations.
Looking ahead, further changes scheduled for 2027 will restrict the use of confidentiality clauses, or NDAs, which prevent employees from speaking out about harassment or discrimination. The exact exceptions are still being developed following Government consultation.
Rudy now examines five hypothetical workplace scenarios, and explains the challenges businesses may face as the new legislation takes effect:
Scenario 1: A key figure at one of your biggest clients has repeatedly made sexual comments towards a member of your team. The employee is still expected to attend meetings and work closely with the client because of the value of the relationship.
Rudy’s verdict:
This is exactly the type of situation the new third-party harassment provisions are designed to address. The fact that an individual is an important client is unlikely to excuse a failure to protect employees from inappropriate conduct.
Where an employee is expected to continue working with a client who engages in sexual harassment, the employer could face a significant risk of liability if it failed to take all reasonable steps to prevent the harassment.
Scenario 2: A barista at your coffee shop overhears a group of customers making homophobic comments from one of the tables.
Rudy’s verdict:
Many employers may assume there is no issue because the comments were not aimed directly at an employee. That assumption could be risky. If staff hear homophobic remarks in the workplace and those comments create an intimidating, hostile, degrading, humiliating or offensive working environment, they could give rise to an Employment Tribunal claim.
The key question would then include whether the employer had taken all reasonable steps to minimise the risk of this behaviour and protect staff from it. Depending on the business, preventative measures might include staff training, empowering managers to intervene and displaying clear notices which make it clear that discriminatory or offensive language will not be tolerated.
Scenario 3: No complaints have been made, but an employee tells their manager they believe junior members of staff are being sexually harassed by a senior colleague.
Rudy’s verdict:
Employers should not assume that inaction is justified simply because no formal complaint has been made. If concerns are raised that junior staff may be experiencing sexual harassment, those concerns should be taken seriously and investigated appropriately. The employee raising the concern may also qualify for whistleblowing protection.
Since April, sexual harassment has expressly been recognised as an issue which can form the basis of a protected disclosure, provided the usual requirements for whistleblowing protection are met. If the employee qualifies for protection and is subjected to detrimental treatment for speaking up, the employer could face additional legal risks beyond the underlying harassment allegations.
Scenario 4: A contractor working on your building site mocks a worker’s disability in front of colleagues.
Rudy’s verdict:
Employers may assume that because the individual works for another business, responsibility for their behaviour sits elsewhere. The new third-party harassment provisions mean that assumption could be risky.
If a worker is subjected to disability-related harassment by a contractor and the employer fails to take all reasonable steps to prevent it, there may be a significant risk of liability. Employers will need to be able to show what steps they took to prevent it and protect affected workers.
Scenario 5: A client regularly makes racist comments towards a member of staff and insists on dealing only with male employees.
Rudy’s verdict:
Many employers will have encountered difficult clients. The problem arises when poor behaviour crosses the line into harassment relating to a protected characteristic such as race or sex.
Under the new third-party harassment provisions, employers cannot simply turn a blind eye because the individual is an important client. Tribunals are likely to focus on what practical steps were taken to protect employees and prevent the behaviour from continuing.
Rudy Fendlen is a Director and Head of Employment Law at WHN Solicitors. A Chartered Legal Executive Litigator, Rudy specialises in employment law and advises both employers and employees on a wide range of sensitive workplace issues and disputes.
If you’re looking for an employment law solicitor for business matters, WHN Solicitors advises employers across Lancashire, Greater Manchester and throughout England and Wales on the full range of contentious and non-contentious employment law issues.
Contact Rudy Fendlen on 0161 761 8067 or rudy.fendlen@whnsolicitors.co.uk.
