Fulfilling your proactive duty to prevent sexual harassment: What every employer needs to know

On 26 October 2024, a significant shift in employment law came into force. Employers are no longer expected to simply react to complaints of sexual harassment - they now have a legal duty to take proactive steps to prevent it from happening in the first place. This marks one of the biggest changes to workplace equality law in recent years.

The changes don't stop there. The Employment Rights Act 2025 introduces further reforms, with additional obligations coming into force from October 2026 and beyond.

For employers, this means now is the time to review policies, assess workplace risks and demonstrate that reasonable preventative measures are already in place.

The current legal duty

Since 26 October 2024, all employers have had a proactive and preventative duty to take reasonable steps to prevent sexual harassment in the workplace.

This is an anticipatory duty, meaning employers cannot wait until an incident occurs before taking action. Instead, they must identify potential risks and implement preventative measures before problems arise. The duty applies specifically to sexual harassment occurring "in the course of employment."

What counts as sexual harassment?

Under the Equality Act 2010, sexual harassment occurs where someone experiences:

Unwanted conduct of a sexual nature that violates their dignity, or

Creates an intimidating, hostile, degrading, humiliating or offensive environment.

It also includes treating someone less favourably because they rejected or submitted to unwanted sexual conduct.

Sexual harassment can include:

·      Unwanted touching

·      Sexual comments or jokes

·      Inappropriate messages

·      Sharing explicit images

·      Persistent unwanted advances

·      Sexual gestures or behaviour

Importantly, employers are responsible for preventing these behaviours before they escalate.

Why employers cannot ignore this

The Equality and Human Rights Commission (EHRC) now has stronger powers to investigate employers who fail to meet their preventative duty.

The EHRC can:

·      Investigate employers

·      Issue unlawful act notices

·      Require action plans

·      Enter legally binding agreements

·      Apply for injunctions

Employees do not even need to have suffered harassment before concerns can be raised with the EHRC if an employer is failing to take reasonable preventative steps.

Alongside regulatory enforcement, employees may also bring Employment Tribunal claims for:

·      Sexual harassment

·      Harassment related to sex

·      Victimisation

·      Constructive unfair dismissal

·      Whistleblowing detriment

Discrimination-related compensation remains uncapped, making prevention both a legal and commercial priority.

What does "reasonable steps" actually mean?

Many employers ask what they should actually be doing. The EHRC guidance recommends an eight-step approach:

1. Have a robust anti-harassment policy

Policies should clearly state:

·      Sexual harassment will not be tolerated.

·      Who is protected.

·      Expected standards of behaviour.

·      Reporting procedures.

·      Possible disciplinary outcomes.

Policies should not simply sit in an employee handbook, they must be communicated and understood.

2. Engage your workforce

Employees should understand:

·      Expected behaviours

·      Reporting routes

·      Management commitment

·      The organisation's culture of respect

3. Carry out a risk assessment

This is perhaps the biggest practical change. The EHRC states that employers are unlikely to comply with the preventative duty unless they carry out a risk assessment. Employers should identify where harassment risks may arise, consider preventative measures, decide which are reasonable, and implement them.

Consider risks arising from:

·      Lone working

·      Night shifts

·      Alcohol at work events

·      Customer-facing roles

·      Remote working

·      Power imbalances

·      Third-party interactions

4. Provide safe reporting channels

Employees must know:

·      How to report concerns

·      Who to report them to

·      That reports will be taken seriously

·      That retaliation will not be tolerated

5. Deliver regular training

Training should not be a one-off exercise.

Managers require additional training so they understand:

·      Their legal responsibilities

·      How to recognise inappropriate behaviour

·      How to respond appropriately

·      How to investigate concerns fairly

Training records should also be maintained.

6. Respond properly to complaints

Even with preventative measures, complaints may still arise.

Employers should have clear investigation procedures that are:

·      Prompt

·      Fair

·      Confidential

·      Well documented

7. Address third-party harassment

Risk assessments should include harassment from:

·      Customers

·      Clients

·      Visitors

·      Contractors

·      Suppliers

Many organisations overlook this area, but it is becoming increasingly important.

8. Monitor and review

Policies should not remain static.

Regularly review:

·      Complaints

·      Risk assessments

·      Training

·      Lessons learned

·      Workplace culture

Continuous improvement is now expected.

Documentation matters

If the EHRC investigates or a tribunal claim is brought, employers will need evidence—not simply good intentions.

Useful documentation includes:

·      Sexual harassment policy

·      Risk assessments

·      Action plans

·      Training records

·      Incident logs

Being able to demonstrate the steps taken can be just as important as taking them.

What is changing under the Employment Rights Act 2025?

The Employment Rights Act 2025 strengthens employer responsibilities even further.

1. "Reasonable steps" becomes "all reasonable steps"

From 30 October 2026, employers must take all reasonable steps to prevent sexual harassment rather than simply reasonable steps.

This higher threshold will require organisations to continually review existing measures and consider whether more can reasonably be done. Regulations are also expected to clarify what constitutes "all reasonable steps."

2. Greater liability for third-party harassment

Currently, employees cannot generally bring standalone claims against employers for third-party harassment, although the EHRC expects employers to address these risks as part of their preventative duty.

From 30 October 2026, employers are expected to become liable for harassment by third parties, including customers and clients, unless they can demonstrate that all reasonable steps were taken to prevent it. For sectors such as hospitality, healthcare, retail and leisure, this represents a major compliance challenge.

3. Restrictions on non-disclosure agreements

Further reforms expected during 2027 will prevent employers from using confidentiality clauses or NDAs to stop workers making disclosures or allegations about harassment or discrimination.

Practical steps employers should take now

Rather than waiting for further reforms, employers should act now by:

·      Reviewing harassment policies

·      Carrying out documented workplace risk assessments

·      Assessing third-party risks

·      Delivering regular staff and manager training

·      Creating clear reporting procedures

·      Recording preventative actions

·      Reviewing policies annually

·      Embedding a respectful workplace culture

The proactive duty has already been in force since October 2024, and the Employment Rights Act 2025 makes it clear that expectations will only continue to increase. Regular reviews of policies, processes, risks and training are essential to remain compliant.

Final thoughts

The law has fundamentally shifted from reacting to complaints to preventing harassment before it occurs.

For employers, compliance is no longer about having a policy hidden away in an employee handbook. It is about demonstrating an active commitment to creating a safe workplace through planning, training, risk assessment and continuous improvement.

Businesses that take these steps now will not only reduce legal risk but also foster a workplace culture where employees feel safe, respected and valued.