Following the changes brought into force by the Employment Rights Act 2025 on 30 October 2026, the Equality and Human Rights Commission (EHRC) has updated its technical guidance on preventing workplace sexual harassment, incorporating the changes imposed by the strengthened “all reasonable steps” preventative duty.
What is the duty?
Under Section 40A of the Equality Act 2010, employers must now take all reasonable steps to prevent sexual harassment of their employees in the course of their employment.
The duty is preventative, meaning employers will now be required to take whatever positive, proactive steps as would be reasonable for an employer in their position. The duty extends beyond harassment committed by an employer’s own workers, to include preventing harassment by third parties the workers may come in contact with in the course of their employment.
Risk assessments
The first step employers should take is carrying out a bespoke sexual harassment risk assessment. Without one, they are very unlikely to be able to comply with the preventative duty. This risk assessment should consider the full range of the employer’s working practices and the risks employees may face, the steps that the employer currently takes to manage those risks, and identifies any further actions which could be taken.
This process should include a review of the employer’s policies and procedures, ensuring staff are aware of reporting mechanisms, and making sure that management know what to do if a worker raises a complaint of harassment.
It may be necessary to have a number of risk assessments for different business units as, for example, client-facing employees will have a different risk profile to those working in back-office functions.
What are “all reasonable steps” for the preventative duty?
There is no blanket definition of reasonable, and the law does not list specific steps to comply with this requirement. Instead, different employers will be required to take different approaches, depending on the risks of their specific business. All employers must take action and no employer is exempt.
Whether or not an employer has taken all reasonable steps is an objective test depending on the facts and circumstances of each situation. In any case, what amounts to all reasonable steps is not what the employer or employee considers, but what an objective third party (for example, an Employment Tribunal) would consider to be so.
When an employer considers whether they implement a step, they should:
- Consider the risks of sexual harassment occurring in the course of employment (keeping in mind the obligation extends to those acts committed by third parties);
- Consider what steps it could take to reduce those risks and prevent the sexual harassment of its employees;
- Consider which of these steps it would be reasonable to take;
- Implement all reasonable steps.
Should it be determined that there are other reasonable steps which an employer could have taken, but had decided not to, they will be deemed to have failed in their preventative duty. It is therefore vital that employers thoroughly consider each possible step. In deciding whether a step is reasonable, relevant factors to consider include:
- The size and resources of the employer
- The nature of the working environment
- The sector they operate in
- The risks present in the workplace
- The nature of any contact with third parties (considering type, frequency and environment)
- The effect of any step, and whether another step may be more effective
- The time, cost and potential disruption of a step, weighed against the benefits it may achieve
- Whether concerns have been raised that sexual harassment has taken place
- Compliance with any regulatory standards
- Whether steps taken appear to have been effective (if a further incident occurs after steps have been taken it may indicate an additional or alternative step should be considered)
If a potential mitigating action is identified but determined to be unreasonable or impractical to implement, the employer should thoroughly document this decision-making process.
Failure to comply with the preventative duty:
Compliance with the preventative duty is a continuous obligation, and employers therefore must keep measures under regular review for effectiveness and (where necessary) further action. In doing so, employers may be inclined to remove steps which have failed to prevent a particular act of sexual harassment. However, a step may still be considered as reasonable if it reduces the risk of sexual harassment occurring. Employers must therefore carefully consider the removal of any steps they have already taken and implemented.
Under Section 40A of the Equality Act 2010, employers must now take all reasonable steps to prevent sexual harassment of their employees in the course of their employment.
EHRC enforcement powers
Under the Equality Act 2006, the EHRC has enforcement powers against any employer who fails to comply with the preventative duty. The powers include the ability to:
- investigate an employer
- issue an unlawful act notice, confirming a breach of the 2006 Act and requiring an action plan to remedy current and future breaches
- enter into a formal legally binding agreement with an employer to prevent future breaches
- ask the court for an injunction to restrain an employer from committing an unlawful act
Enforcement powers can be used to take action if the EHRC suspects an employer has not complied with the preventative duty, or if workers have reported a concern that the duty has been breached. Employers must therefore be proactive and regularly review their policies and steps.
Finally, employers must bear in mind that employment tribunals will consider whether the preventative duty has been complied with if they find that a worker has been sexually harassed and they have ordered the employer to pay compensation. If the employment tribunal is not satisfied that the preventative duty has been complied with, any award can be subject to a compensation uplift of up to 25% of the amount awarded under the Equality Act 2010.
How can employers prepare?
If you would like advice on reviewing your policies, conducting workplace risk assessments or implementing effective sexual harassment prevention measures, contact our employment law team. We can help ensure your organisation is prepared for the strengthened legal obligations and reduce the risk of costly tribunal claims and regulatory action.
Is your organisation ready for the Employment Rights Act 2025?
Please reach out to our employment team to discover how we can support you:
- Explore our tailored support packages for UK businesses
- Request your personalised Employment Rights Act action plan today
