In this fifth post of our series on the Employment Rights Act 2025 (ERA), and with just a week to go before the next tranche of eight changes come into force on 6 April 2026, we are going to look in summary at Sexual Harassment (SXH). As with all summaries, there are always some exceptions, but for the sake of brevity we have kept to the main features.
SXH is unwanted conduct of a sexual nature that has the purpose or effect of violating the victim’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim (section 26(2) of the Equality Act 2010).
By way of background, the change to SXH-related legislation that we are about to set out, comes off the back of fairly recent changes to sexual harassment laws that were introduced in October 2024, and comes ahead further changes scheduled to come in October this year.
Sexual Harassment legislation
You may recall that in October 2024 a positive obligation on employers to take reasonable steps to prevent SXH in the workplace was introduced into the Equality Act 2010 (EqA).
Until that point, the only reference to steps taken to prevent harassment was to be found in the EqA defence an employer used when faced with a claim for any discriminatory conduct committed by an employee in the course of employment.
Under that defence, an employer can escape vicarious liability for the acts of its employees by showing that it took all reasonable steps to prevent the perpetrating employee from doing that discriminatory act.
An ‘all reasonable steps’ defence is only likely to succeed if an employer has a policy in place explaining what constitutes the relevant discriminatory conduct, can show that the relevant employee has been informed about it and undertaken relevant preventative training. If the defence is successful, the perpetrating employee is personally liable.
One might think that, in light of the above, all employers would have been motivated to undertake those preventative steps, however, the reality was that many employers did not and left it to chance. In other words, the law left too many employers adopting a reactive approach.
October 2024 Changes
The introduction in 2024 of the proactive duty to take reasonable steps (but not all reasonable steps) to prevent SXH specifically, is an attempt to better tackle this problem, which is sadly still all too common, particularly in some industry sectors.
The ‘stick’ used for not complying with the proactive duty to inform and train staff about SXH is that employers are exposed, not only to a greater chance of losing a claim, but to an uplift of the compensatory award of up to 25% and an investigation by the Equality and Human Rights Commission who have the powers to take enforcement action.
April 2026 Change
The incoming change on 6 April 2026 introduces SXH as a new qualifying disclosure in the whistleblowing legislation.
As a reminder, under the whistleblowing legislation an employer cannot subject a worker to detriments in retaliation for that worker conveying facts that relate to a prescribed list of issues known as a qualifying disclosures. There is no statutory definition of what a detriment is, but dismissal, demotion, a reduction in pay and disciplining a worker can all be detriments.
A qualifying disclosure must be a disclosure of information which, in the reasonable belief of the worker making it, tends to show one or more of the following:
- That a criminal offence has been committed, is being committed or is likely to be committed.
- That a person has failed, is failing or is likely to fail to comply with any legal obligation to which they are subject.
- That a miscarriage of justice has occurred, is occurring or is likely to occur.
- That the health or safety of any individual has been, is being or is likely to be endangered.
- That the environment has been, is being or is likely to be damaged.
- That information tending to show any matter falling within any of the above paragraphs has been, is being or is likely to be deliberately concealed.
Arguably a worker who has complained about SXH (either as victim, witness or otherwise) would have been protected under point two above (failure to comply with any legal obligation). However, to put that beyond doubt, the ERA adds SXH as a seventh qualifying disclosure as follows:
- That sexual harassment (within the meaning of section 26(2) of the Equality Act 2010) has occurred, is occurring or is likely to occur.
Significantly, a settlement agreement clause requiring the parties to keep confidential the nature of the dispute being settled is not legally enforceable insofar as it prevents a whistleblowing disclosure. This will be supplemented by a new section 24 ERA which goes further to make unenforceable a confidentiality clause which prevents disclosure of any act of harassment or discrimination.
This means that employers will no longer be able to cover up SXH. Crucially, this also underlines the importance of complying with preventative duties not only to protect staff, but because if an act of SXH does become public with all its reputational consequences, the employer can cast the perpetrating employee as a rogue actor.
Two changes in October 2026
Firstly, the proactive duty to prevent SXH introduced in 2024 (as discussed above), will become more onerous in October 2026 by extending it from taking ‘all reasonable steps’ to taking ‘all reasonable steps’.
Secondly, employers will also be under a duty to take “all reasonable steps” to prevent third-party harassment in relation to all relevant protected characteristics in the EqA, for example, sex, race and disability.
This extended third party duty has caused serious concerns from employers in the retail and hospitality sectors where much of what customers say and do is outside of their control.
These extended duties will be accompanied by regulations and statutory guidance on what constitutes ‘all reasonable steps’ but these are still subject to consultation.
We will further update you on these October changes as we get closer, consultations conclude and guidance is published.
Next Steps
Employers should review their handbooks with the aim of updating their Equality, Harassment and Whistleblowing policies and if they have not yet undertaken staff training, they should consider doing so.
If you need any advice on running training, updating any of the above mentioned policies or are facing a claim related to anything in this blog, please contact Michael-Jon Andrews at or call 020 8944 5290 to speak to our approachable Employment team.
Coming next – Updated Employment Factsheet for 2026/2027