It’s Friday 30th October. A group of colleagues are going out for team drinks tonight with a supplier. As usual, before leaving for the bar, they exchange Teams messages. One of the team posts that she’ll have to leave early; she’s got plans with her new boyfriend. Another replies with a lewd innuendo. The team add their emojis (which don’t raise the tone one bit).
Later, in the bar, the manager gets in the next round and thanks the team for their hard work that week. The supplier makes a comment about one team member’s outfit, her attractiveness, and someone else makes a suggestive joke... There’s ‘a bit of banter’. No-one says anything to stop it. Another of the team looks uncomfortable and leaves.
Let’s be clear – this conduct would be problematic on any day, but legal changes mean that today their employer faces an even greater risk of challenge.
From 30th October 2026:
- employers become liable for harassment of their employees by third parties including customers, clients, or suppliers unless they have taken all reasonable steps to prevent it; and
- the existing pro-active duty to prevent sexual harassment increases to a requirement to take “all” reasonable steps.
The team’s employer may well be in difficulty on both counts here. There are two key questions an employer needs to have in mind as the law changes:
Question 1
How likely is it that this type of behaviour (or something like it) might happen in our business? This is a question that goes to the heart of culture and conduct: the way people behave day-to-day and the risks they face and create.
Question 2
Would we be able to show we’d done enough defend a claim if an employee complained? That’s a question about compliance.
From today, an employer is unlikely to be able to answer ‘yes’ to question two if they know, or should know, there’s a culture or conduct risk and they haven’t done all they reasonably can to address it.
What do ‘all’ reasonable steps require of an employer?
It’s worth focussing on what the new law is aiming to achieve: that there’s a reduction in incidents of harassment and that, if problematic behaviour does happen, an employer deals with it effectively. The compliance question needs to shift from:
- ‘have we ticked the boxes we need to defend a claim?’ to
- ‘have we taken steps that will prevent harassment?’.
It’s a subtle but important mindset change.
The new legislation doesn’t specify what “all reasonable steps” will be: regulations are expected in 2027. We know at the moment that what’s reasonable will depend on an employer’s size, sector, working environment and resources. Anti-harassment policies, robust risk assessments, engaging and training staff, effective reporting and complaints systems, ongoing evaluation, and tackling third party harassment will continue to be key.
Can a compliance-driven step count as a ‘reasonable’ step if you know it isn’t effective? Probably not. Employers need to take steps that make a difference on the ground. Ticking boxes while knowing that people continue to behave inappropriately, that managers don’t challenge poor conduct, or that leaders don’t set the tone, will leave an employer exposed.
Workplace training plays a central part. It can help shape culture, conduct and compliance. But it, like every other step, will need to be effective – something that engages learners and has ongoing impact. 60% of the attendees at our recent harassment prevention seminar hadn’t run live in-person training in the preceding twelve months. Unless employers have well-founded confidence that their workplace harassment risk is low, that points to there being a significant learning gap to close.
So what should employers be doing right now?
We’ve written previously about the duty to take reasonable steps to prevent sexual harassment, the importance of risk assessments and training, and how we can help you to comply with this duty. The increase to “all” reasonable steps will mean employers now need to do more.
Start by asking those two questions above – and if the answer to the first one gives you cause for concern you may need to take further steps. We know how difficult it can be - you want to create an environment where people can have some fun at the same time as working, you want to celebrate success and you want colleagues to engage socially - outside of the office environment. With winter festivities approaching – you want people to be enjoy themselves. But you also want to avoid the risks that we know arise when banter, alcohol and misplaced humour combine. The key is encouraging an environment of respect for everyone that is openly role modelled by your people leaders. To do this, everyone needs to be clear on your values, your expectations around workplace behaviours and the support available when issues arise.
Our team delivers live training that goes beyond the tick-box: it's designed to get your people thinking about behaviour. From employee sessions to practical upskilling for managers and leaders on calling out conduct like the 'banter' in the bar, and even managing those challenging situations where third-party behaviour causes problems and commercial relationships are at stake. Where live training isn’t practicable, our eLearning offers an interactive and engaging alternative.
The new liability for third party harassment will be particularly relevant for public-facing sectors such as retail and hospitality. But it will be relevant to all employers, who will need to think about how their staff interact with third parties such as clients, contractors and suppliers, as well as the impact on co-working spaces.
If you're not sure what level of risk exists in your organisation, we can offer culture reviews to help you find out what's really happening on the ground, and what you can do about it, before you face a claim.
Get in touch with Lucy Hendley or your usual Lewis Silkin contact to find out more.
