HAVE YOU EVER CARRIED OUT A SEXUAL HARASSMENT RISK ASSESSMENT?

Introduction

Last month’s blog on sexual harassment focussed on its recent inclusion in the list of wrongdoings protected by the whistleblowing legislation. In a pincer movement designed to provide even more protection to employees the Employment Rights Act 2025 extends the obligations on employers to prevent sexual harassment in the workplace.

Since 26 October 2024 employers have been required to take reasonable steps to prevent sexual harassment of their employees. It is defined as “unwanted conduct of a sexual nature” which has “the purpose or effect of either violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”.

ALL reasonable steps

Section 20 ERA 2025, which is likely to come into force in October 2026, extends the requirement to take reasonable steps to a requirement to take ALL reasonable steps to prevent sexual harassment.

Regulations

Furthermore, there is a power at section 22 enabling a Minister of the Crown to make regulations which describe what “reasonable” looks like for these purposes. The regulations may include carrying out specified assessments, publishing specified plans or policies, together with procedures relating to the reporting of sexual harassment and the handling of complaints. The list is not exhaustive and even if an employer complies with all the requirements laid out in the regulations it may still fall short of taking all the reasonable steps required. Much will depend on the specific circumstances of the employer, including its size, resources and industry sector.

Consultation

Before the regulations come into force there will be a full public consultation.

EHRC guidance

In the meantime, the Equality and Human Rights Commission has updated their guidance to support employers with the future changes including an eight-step guide to preventing sexual harassment at work. The steps include: -

• Developing an effective anti-harassment policy

• Engaging with staff through regular 1:2:1s, by running surveys and exit interviews and having open door policies

• Conducting risk assessments

• Devising an anonymous reporting procedure

• Providing training in dealing with sexual harassment

• Acting immediately to resolve complaints

• Monitoring and evaluating actions taken

Third parties

Not only must employers take all reasonable steps to prevent discrimination but section 21 ERA 2025 provides they must not permit third parties to harass their employees at work. Third parties are persons other than employees and permitting involves failing to take all reasonable steps to prevent the harassment.

The duty to prevent harassment by third parties is not limited to unwanted conduct of a sexual nature as described above but covers all the conduct described in section 26 including any ‘unwanted conduct’ related to age, disability, race, sex, gender reassignment, sexual orientation and religion or belief.

Breach of regulations

Breach of the regulations will not provide a free-standing cause of action in the Employment Tribunal. Instead, a successful claimant in a sexual harassment claim may receive an uplift of 25% in their compensation where there has been a breach of the preventative duty.

Some harassment claims, particularly those which involve psychiatric injury, not only give

rise to a cause of action for breach of Section 26 Equality Act 2010, but also for breach of the Protection from Harassment Act 1997 and in negligence. Any failure to comply with the regulations will no doubt form a basis for a claim in negligence.

Points to consider

1. As an employer, have you ever carried out a harassment risk assessment?

2. What is the methodology?

3. How is the risk assessment documented and reviewed?

Mariel Irvine

21 May 2026