How the Employment Rights Bill strengthens protections against harassment and discrimination

Following recent government announcements on the new Employment Rights Bill, this is the third blog in a series of five, which are breaking down the key changes.

In this instalment, we focus on sexual harassment and discrimination issues. Our previous blogs have explored changes to flexible working and leave, and dismissals.

Sexual harassment prevention

Employers will now be required to take “all reasonable steps” to prevent sexual harassment; an important shift from the previous, more general duty.

This heightened obligation currently applies only to sexual harassment, not to harassment linked to other protected characteristics. As a result, there is concern the changes could create a “two-tier” system, where sexual harassment is more heavily protected than other forms of discrimination.

The government is expected to issue regulations clarifying what counts as “reasonable steps.” These will likely include measures such as risk assessments.

In short, employers will be required to prove specific steps they took to prevent sexual harassment, and what steps were taken to handle any issues that arise, and the burden of proof will be significantly higher than previously.

Third party sexual harassment

Crucially, the Bill also proposes reintroducing employer liability for harassment by third parties, such as contractors or members of the public.

Employers will once again be required to take “all reasonable steps” to prevent third-party harassment, whether linked to sexual harassment or any other protected characteristic. However, the threshold will be lower than for harassment by employees, as employers cannot exert the same level of control over third parties.

Exactly how these duties will operate in practice remains to be seen. In particular, the law will need to carefully balance protection from harassment against the Article 10 ECHR right to freedom of expression, for example in cases of overheard comments or conversations.

Disclosures of sexual harassment

Currently, employees are protected under whistle-blowing legislation if they suffer detriment for disclosing wrongdoing. Under the new proposals, disclosures of sexual harassment will be formally recognised as a type of protected disclosure.

In practice, this means that complaints of sexual harassment may need to be managed under an employer’s whistle-blowing policy rather than a standard grievance procedure. Employers will also need to be mindful that settlement agreements cannot require employees to keep sexual harassment allegations confidential, as such disclosures are excluded from confidentiality clauses by law. In addition, employees will have access to interim relief claims, allowing them to seek immediate protection from dismissal while their case is ongoing.

Equality action plans

Employers with more than 250 staff will be asked to introduce a new Equality Action Plan, setting out steps to promote equality in the workplace. This may include initiatives such as addressing the gender pay gap or broader DEI commitments.

The scheme will initially be voluntary but is expected to become compulsory from 2027 onwards.

Dismissals for pregnancy or family leave reasons

Existing protections for pregnant employees are being strengthened under the new proposals. It will become unlawful to dismiss an employee within six months of their return from maternity leave, except in limited circumstances which are yet to be confirmed. Similar protections will also extend to employees returning from other types of family leave, with further regulations expected to set out exactly how these provisions will operate in practice.

How Harrowells can help

We recognise that both employers and employees may feel uncertain about these upcoming changes. Whether you are looking for proactive advice, support in handling complaints, or guidance through potential claims, our team is here to help.

If you are affected by any of the issues outlined above or want to prepare your organisation for the changes ahead, please get in touch for tailored advice or a confidential discussion.