The government’s Employment Rights Bill (ERB) Roadmap, published earlier this month, will lead to a “significant increase” in employer responsibilities to protect staff from harassment, warn legal experts from Winckworth Sherwood.
And forecourt operators alongside other employers should start preparing for the new obligation to prevent third party harassment, and a separate requirement to take ‘all reasonable steps’ to prevent sexual harassment, explain Louise Lawrence and Will Clift, from Winckworth Sherwood’s employment team.
The duty to prevent the harassment of employees by third parties and the strengthened duty to prevent sexual harassment of employees
The Employment Rights Bill (ERB) will make employers liable when their employees are harassed by third parties, such as clients or customers, in the course of their employment. This is in contrast to the current position where employees cannot bring a standalone claim in the Employment Tribunal for third party harassment. The government has confirmed in its recently published ERB Roadmap that this change will take effect in October 2026.
Harassment by third parties
An employer will only be able to defend a claim for third party harassment if it can demonstrate that it took all reasonable steps to prevent the third party from harassing the employee in question. This proposed duty is particularly relevant to employers whose employees work in public facing roles, such as retail.
In this context, harassment will occur when a third party subjects an employee to unwanted conduct that is related to a protected characteristic (which includes, for example, sex, race, and sexual orientation), and which has the purpose or effect of violating the employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee.
An employee will also have been harassed if they are subjected to unwanted conduct of a sexual nature which has the same effect. The protected characteristics of marriage and civil partnership and pregnancy and maternity are not included in the definition of harassment for the purposes of these new provisions.
Examples of conduct that may amount to harassment from customers include racial slurs, lewd or suggestive comments, and unwanted touching. It is important to note that, when assessing if harassment has occurred, an Employment Tribunal will take into account the employee’s perception (so how they felt about the conduct), but also whether it was reasonable for the conduct in question to have had the effect that it did on the employee.
As above, to avoid liability for third party harassment, an employer must demonstrate that it took all reasonable steps to prevent the third party from harassing the employee. This is a very high standard and employers (and especially those whose employees work in public facing roles) should therefore give careful thought as to how they will meet this duty.
One fraught area for public facing employers is the question of what steps should be taken to prevent third parties from making comments that some employees may find offensive, but which nonetheless amount to an expression of that person’s political, religious or other views, which that person may have a right to express.
In response to these concerns, the government has stated that, under the new provisions, any steps that an employer takes to prevent harassment that would also amount to a disproportionate interference with a third party’s rights would not be “reasonable” and so would not need to be taken. That is all very well, but it will still be for employers to determine what would amount to a disproportionate interference with someone else’s rights, and that may not be a straightforward task.
Employers have also expressed concerns about the possibility of having to unreasonably curtail “banter” among customers, which may offend some but which many will find harmless. With respect to this concern, employers should note that conduct will only amount to harassment if it was reasonable for the employee to feel that the conduct had the purpose or effect described above, meaning that genuinely innocuous comments that have caused offence should not amount to harassment.
Unlike many of the other upcoming changes under the ERB, the government has not outlined when businesses and stakeholders will be consulted on this duty. While a future announcement may clarify this, the opportunity for input seems limited at this stage.
The duty to prevent sexual harassment
The separate strengthened duty on employers being introduced in the ERB in October 2026 to take all reasonable steps to prevent sexual harassment in the workplace, will replace the current obligation on employers to take reasonable steps to prevent sexual harassment in the workplace. This duty will come into effect before the government sets out the full and complete detailed regulations on what those ‘reasonable steps’ involve as the ERB Roadmap specifies that these regulations are not due to be introduced until 2027.
Practical steps
There are a number of practical steps that employers could consider taking in order to prepare for the introduction of liability for third-party harassment:
- · Carrying out risk assessments for employees working in public areas.
- · Publishing relevant plans and policies such as action plans to prevent harassment, a procedure for how employees should report harassment and a system put in place for how complaints will be handled.
- · Putting up warning notices in public areas explaining that any form of harassment of employees will not be tolerated, and what steps might be taken if harassment occurs.
- · Training managers on how to effectively intervene if customers are being abusive.
- · Fully investigating any concerns that are raised and banning customers from public premises if appropriate.
When the duty is introduced, formal guidance will be published and employers would be well advised to review that in detail when considering what steps to take in order to try and prevent third party harassment.
- Louise Lawrence is a partner and Will Clift is a senior associate in Winckworth Sherwood’s employment team. If you have any questions on this article or would like to discuss anything relating to commercial law, please do contact them.
Neither of Winckworth Sherwood or Forecourt Trader shall be liable for any decision or action taken on the basis of this column. Nothing in this article constitutes legal advice or gives rise to a solicitor/client relationship. Specialist legal advice should be taken in relation to specific circumstances.
