Complaining about sexual harassment amounts to a protected disclosure
Since April 2026, reporting that sexual harassment has taken place amounts to a 'qualifying disclosure' under U.K. whistleblowing legislation.
This means that, whether or not sexual harassment has actually taken place, provided the person reporting reasonably believes that it may have done, they are afforded protected from detriment or dismissal. This expands the level and scope of protection in this area. Bear in mind that it is not just those on the receiving end of unwanted conduct who may complain of sexual harassment, co-workers may also complain.
Employers need to:
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Update written policies on whistleblower and sexual harassment to reflect this change.
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Train managers on how to spot when a qualifying disclosure has been made, the risks associated with this, and how they should respond appropriately.
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Update internal processes for investigating complaints of sexual harassment, to align with risks of both sexual harassment and whistleblowing claims.
A new duty on employers to take all reasonable steps
From October 2026, employers come under a new duty to take 'all reasonable steps' to prevent sexual harassment, a gear-change up from the current requirement to take 'reasonable steps'.
While employers are currently under a duty to carry out a risk assessment, to train staff, investigate incidents and monitor their preventative action plan (see the enforcement body EHRC's 8-step Guide), this is likely to be more than a semantic change. There is evidence that the EHRC has increased its enforcement activity in this area, such as the recent section 23 agreements it entered into with major retailers in the U.K. such as McDonalds and Lidl, where it found evidence that breaches of the Equality Act 2010 might have taken place.
Employers need to:
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Ensure that workplace risk assessments are up-to-date and comprehensive, identifying particular areas of risk, such as where power imbalances exist between workers, where isolation or social situations increase the risks.
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Be able to demonstrate that risk mitigations have been put in place and are kept under review.
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Train staff on sexual harassment, how to report it, and monitor outcomes of reported cases.
Third parties in scope of duty to take all reasonable steps
From October 2026, employers come under a new duty to take 'all reasonable steps' to prevent sexual harassment from third parties, such as customers and workplace partners.
Where an employer is liable for sexual harassment, an uplift of up to 25% may be made on compensation where the preventative duty has been breached in relation to third parties.
While it is already common practice for employers to put up notices in the workplace, pointing out that harassment or staff will not be tolerated, a more interventionist approach is called for, requiring employers to consider what stronger action they are legally empowered, and commercially prepared, to take in relation to third parties.
Employers need to:
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Review current risk assessments, with a focus on risks and mitigation in relation to third parties.
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Ensure their processes for investigating complaints against third parties are rigorous and independent.
Forthcoming: The Government will soon bring in regulations which outlaw non-disclosure agreements (NDAs) in relation to allegations of discrimination, including sexual harassment, except in defined circumstances. It will be important for employers to understand this exception. These regulations are likely to come into force in 2027. They will significantly change how employers approach the question of settlement in such cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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