The Rules Have Changed and Most Employers Are Not Ready
Sexual harassment has always been something employers are expected to take seriously. The Employment Rights Act 2025 has raised the bar significantly. If you employ staff who deal with customers, clients or members of the public, this one matters more than you might think.
- Here is what has changed and what you need to have sorted.
Previously, employers had a duty to take reasonable steps to prevent sexual harassment of their employees. That duty still exists – but the word reasonable has been replaced with all reasonable steps.
That might sound like a small change. It is not. Under the old standard, an employer could defend a claim by showing they had done something, i.e., had a policy in place, provided a training session at some point or that a procedure existed on paper. Under the new standard, the question is whether you did everything you reasonably could.
The burden on employers is higher, and the scope for defending a claim on the basis of partial compliance is narrower.
The third-party change – this is the one most employers have missed
This part of the change has the biggest practical impact for businesses in hospitality, catering, retail, healthcare, and anywhere else staff regularly interact with customers or members of the public.
Employers now have an obligation not to permit harassment of their employees by third parties. Third parties mean customers, clients, suppliers – anyone who is not an employee.
- If a customer harasses a member of your staff and you knew about it, or should have known about it, and you did not act, that is now a problem in a way it was not before.
For a catering business, an events company, a café, a care provider – this is significant. Your staff face this kind of situation more than most. The question is whether you have the policies, the processes and the culture to deal with it properly when it happens.
What all reasonable steps actually looks like
There is no single checklist that covers every business, but the steps tribunals and the courts will look at include the following.
- Do you have a clear sexual harassment policy? Not a general dignity at work statement buried in a handbook nobody reads. A specific policy that sets out what sexual harassment is, that it applies to conduct by customers and third parties as well as colleagues, how it should be reported, and what will happen when it is.
- Do your staff know the policy exists and what to do if something happens? A policy that was issued once and never mentioned again is not the same as a policy that is actively communicated and understood.
- Do your managers know how to handle a report? The first response when a member of staff raises a complaint matters enormously. A manager who dismisses it, delays acting on it, or handles it badly can turn a manageable situation into a serious one.
- Do you have a record of what you have done? If a claim is brought, you will need to show what steps you took. That means documentation – training records, policy issue dates, notes of any complaints and how they were handled.
What about NDAs?
The Employment Rights Act 2025 has also made clear that non-disclosure agreements cannot be used to prevent a worker from speaking out about harassment or discrimination they have experienced.
If you have historically used settlement agreements with confidentiality clauses in situations involving harassment, take advice on whether those clauses are still enforceable. This is an area where the law has moved and what was standard practice a few years ago may no longer hold up.
Why does this matter, particularly in hospitality and catering
If your staff work events, serve customers face to face, or work in environments where alcohol is involved, the risk of third-party harassment is real, and it is regular. Most businesses in this sector know it happens. Not all of them have done enough to address it.
The new duty does not mean you are responsible for every customer’s behaviour. It means you are responsible for having proper systems in place to prevent it where possible, to deal with it properly when it happens, and to support your staff when it does.
A member of staff who raises a complaint and feels it was not taken seriously is far more likely to bring a claim than one who feels supported and saw the situation handled properly.
What to do now
- Check whether you have a sexual harassment policy that specifically covers third-party harassment. If you do not, you need one.
- Check whether your managers know what to do when a complaint is raised. If they do not, they need clear guidance.
- Check whether your policy has been communicated to staff recently – not just issued once and forgotten about.
- If you have had any complaints in the last year or two, review how they were handled and whether the outcome was properly documented.
If you are not sure where to start, a 30-minute consultation will tell you exactly what you need and what it will take to get there.
How we can help
We work with employers across England and Wales – getting contracts, probationary processes and disciplinary procedures properly sorted before they are needed.
Our website will be able to provide more information on how we can help you: www.mckenzielegalandhr.co.uk/employment-legal-advice
A 30-minute consultation is £50. We will tell you honestly what needs attention and give you a fixed fee before any work starts. If you instruct us within seven days, the consultation fee comes off your first invoice.
www.mckenzielegalandhr.co.uk/contact-us or call us on 0118 321 4188.