Susannah Donaldson

These were the findings from a survey conducted by Pinsent Masons as organisations prepare to comply with increased obligations on employers to prevent sexual harassment in the workplace and the risk of third-party harassment claims.

The extended proactive duty to prevent sexual harassment, effective from 1 October 2026, will oblige employers to take “all reasonable steps” to prevent sexual harassment in the workplace. This goes much further than the current obligations for employers to take just “reasonable steps” to prevent sexual harassment, which have been in place since October 2024.

Employers will also be liable for third party harassment if they fail to take “all reasonable steps” to prevent it. There is no proactive duty to prevent third party harassment, except for sexual harassment. However, the assessment of whether liability arises because of a failure to take “all reasonable steps” may mean the practical impact is similar to a positive duty to prevent.

Almost three-quarters of employers surveyed during Pinsent Masons’ annual equality, diversity & inclusion conference said they were taking “all reasonable steps” to prevent workplace sexual harassment. However, less than a quarter reported having internal systems already in place to monitor how effective training and other preventative measures were in protecting employees from potential sexual harassment.

Encouragingly, 64 per cent of respondents said they had carried out a risk assessment to identify particular risk factors in their organisations and then identified potential mitigating measures to tackle these risks. Almost 40 per cent of respondents reported that third parties, particularly co-contractors or workers from other organisations, posed the biggest “potential risk” to their business.

Conducting a risk assessment is the essential first step in preparing for the new legislative provisions. Without identifying where harassment-related risk areas lie, it will be difficult to persuade an employment tribunal that all reasonable steps have been taken to prevent harassment in the workplace.

Risk assessments should be live documents which are kept under review to enable employers to proactively evidence that they have identified, and implemented, targeted measures to tackle the underlying risks.

The new third-party harassment provisions would involve employers extending their existing risk assessments to cover risks of third party harassment relating to all protected characteristics, as well as sexual harassment.

They should include in their thinking when and where these risks could occur, the sector-specific risks, online risks, lone working and situations involving potential power imbalances, together with any steps that can reasonably be taken to mitigate those risks.

Employers need to set behavioural standards, ensure policies address third-party harassment risks, establish reciprocal expectations and contractual safeguards with clients, suppliers and other third parties, as well as empower employees and managers to be active bystanders.

Employee engagement is the most overlooked step. Finding out from employees themselves what they are experiencing, whether they feel comfortable speaking up, and addressing the heart of the problem is key. Known secrets within organisations, and certain geographical hotspots or departmental risks need to be identified and factored into risk assessments.

Susannah Donaldson is a partner at Pinsent Masons