EHRC updates its harassment guidance to reflect extended legal duties on employers

Background

The Employment Rights Act 2025 (the Act) amended the Equality Act 2010 from 30 October 2026. Employers must now take "all reasonable steps" to prevent sexual harassment of their employees in the course of their employment, rather than "reasonable steps". From the same date, employers can be liable for third-party harassment of their employees unless they show that they took all reasonable steps to prevent it.

The Equality and Human Rights Commission (EHRC) has updated its non-statutory technical guidance on sexual harassment and harassment at work, as well as its eight-step guide for employers, to reflect these changes. The technical guidance was last updated in September 2024, around the time the original preventative duty came into force.

What the guidance covers?

The guidance describes the sexual harassment preventative duty as anticipatory and continuing. Whether an employer has complied is an objective test. If an employer could have taken other reasonable steps but chose not to, it is likely to have breached the duty. A step may be reasonable even if it would not have prevented a particular act, for example because it reduced the risk. The EHRC considers that an employer is unlikely to comply without a risk assessment.

On third-party harassment, an employer will have taken all reasonable steps if there were no further steps it could reasonably have been expected to take. The guidance accepts that these steps will differ from those used to prevent harassment by colleagues. Employers need not plan for situations that are extremely unlikely, and the law does not require them to stop all third-party harassment. The guidance suggests contract terms with third parties, including terms on who investigates allegations, cooperation with investigations and warranties on anti-harassment training.

The guidance also has a new section on harassment and whistleblowing. It covers how to balance protection from harassment against third parties' freedom of expression and belief, noting that complete bans on controversial views are unlikely to be proportionate. It now lists AI-generated sexual imagery, including deepfakes, as an example of conduct of a sexual nature. The eight-step guide keeps its eight steps.

Learning points for employers

The two regimes overlap but do not have the same scope. The preventative duty covers only sexual harassment. Third-party liability applies to all three forms of unlawful harassment and to every relevant protected characteristic. Employers will therefore want a separate third-party risk assessment that covers all forms of harassment, not only sexual harassment.

For more information or advice, please get in touch with Alastair Fatemi in our Employment team.