How the Employments Rights Bill proposes to extend protections from harassment at work

The Employment Rights Bill - which is currently before Parliament and will put in place commitments set out in Labour’s 2024 manifesto - is set to overhaul employment law in the UK.

The Bill introduces numerous provisions that could significantly affect both employers and insurers and contains a number of changes to promote fairness and equality at work. It will further create a new regime for the enforcement of employment law and it will extend protections against harassment at work. 

Baroness Jones, in her opening statement at the second reading in the Lords said: 

“Regarding harassment in the workplace, it remains a sad reality that too many people often find their workplace unsafe. This can have a detrimental impact on people’s lives and careers, and this is particularly true for women. We are clear as a Government that we will do all we can to tackle this. We are legislating to strengthen the legal duty for employers to take all reasonable steps to stop sexual harassment before it starts, including harassment by third parties”.

The Equality Act 2010 provided legal protections against sexual harassment in the workplace. Despite this, in a 2023 Trade Union poll, 58% of women said they had experienced sexual harassment at work, and 57% of those who reported sexual harassment said they were subjected to it three times or more. This survey data highlighted that sexual harassment in the workplace remains a problem. 

The Workers Protection (Amendment to the Equality Act 2010) Act 2023 came into force on 26 October 2024. This Act introduced a legal duty on employers to take “reasonable steps” to prevent sexual harassment of its employees in the course of their employment. It placed a new preventative and proactive duty on employers, a shift from reacting to complaints, to taking steps to prevent harassment from occurring in the first place. 

Measures in Part 1 of the government’s Employment Rights Bill are intended to strengthen protections against harassment by introducing further amendments. Firstly, the Bill looks to amend the duty in the 2023 Act to require employers to take “all reasonable steps” to prevent sexual harassment of their employees. It is immediately clear that the insertion of “all” widens the nature of the duty under the Equality Act 2010. This marks a significant shift in obligation towards the employer in challenging inappropriate conduct. What amounts to “all reasonable steps” will of course vary for different employers, and it will be a subjective test dependant on their size, sector, working environment and resources.  This Bill will require employers to evidence that there were no further steps that they could reasonably have been expected to have taken. 

Secondly, whilst the Workers Protection Act 2023 imposed a positive duty on employers to prevent its employees from being sexually harassed, it did not permit an employee to bring a freestanding claim for third party harassment of any kind (i.e. not limited to sexual harassment only). Although early versions of the 2023 legislation included such a duty, one of the reasons for the subsequent removal of the third-party aspect was to assuage fears about jeopardising free speech, as well as concerns about the cost to businesses and excessive state intervention. The current Employment Rights Bill, however, will re-introduce an obligation on employers not to permit harassment of its employees by third parties. 
 
The obvious question that arises from the anti-harassment provisions in the Employment Rights Bill is what impact these provisions are going to have on employers and insurers. With the Bill looking to enforce “all reasonable steps” in the prevention of sexual harassment, one concern will be whether this is going to be so onerous on employers that it will essentially impose de facto strict liability? If so, it would be difficult to see a scenario where an employer would not be liable. 

As to liability for third party harassment of any kind, the inevitable question is where will the line be drawn? For example, would an employer be liable for third party harassment of an employee walking on their way to work? What would ‘all reasonable’ steps look like to protect employees?  Whilst Baroness Jones in her closing statement at the second reading in the Lords suggested that: “Employers will not be penalised for failing to anticipate the unforeseeable or to take other impractical steps", we will have to wait and see how the court approaches it. Employers will still need to ensure that they are aware of this Bill and are proactive about reviewing their risk assessments and internal policies. Insurers may also need to ask appropriate questions about these areas as part of the underwriting process and may want to consider what is and isn’t going to be covered? 

The Equality and Human Rights Commission has the power to take enforcement action if there is evidence of any employers’ failure to comply with the preventative duty, and has suggested that their “eight step” guide (Employer 8-step guide: Preventing sexual harassment at work | EHRC) should be used for assessing whether, or not, an employer has done all that was reasonably required of it to protect its employees from harassment. Their powers include, investigating suspected harassment and entering into a binding agreement with the employer to take action and assisting individuals with legal proceedings.  

Standing back from the detail, these aspects of the Bill not only extend employers’ legal duties towards employees but could create fertile ground for an increase in claims from failures to take all reasonable care to prevent an employee from being sexually harassed at work, or from being subjected to third party harassment (of any kind).  

The Bill has already been passed by the Commons and had its second reading (debate on the principles) in the House of Lords on 27 March 2025. The detailed scrutiny of Committee Stage began on 29 April and is likely to last for several weeks.  

Clyde & Co are specialists in dealing with work-related claims, and we closely monitor developments around this and related topics. For more on this subject, you can read all of our previous articles here, and if you have any questions about this topic you can contact Alistair Kinley, Polly Miller or any of our Occupational Disease and Legacy Claims team.