Employment Rights Act 2025: Legislative changes related to Whistleblowing and third-party harassment
The Employment Rights Act 2025 means a significant number of important employment law changes of which all employers need to be aware. Our last article focused on Employment Tribunal time limits, in this article we look at two important changes for employers dealing with harassment and whistleblowing.
What are the key changes?
What will likely be reassuring for most businesses, is that the updates should not require a wholesale rewrite of existing HR policies and arrangements, provided they have been updated recently and are already robust. All employers should understand, however, the changes which have been put in place, particularly where employees deal regularly with customers, clients or other people outside the organisation.
The key employment law changes are:
- Since 6 April 2026, sexual harassment has expressly been added to the types of wrongdoing that can form the basis of a protected whistleblowing disclosure
- From 30 October 2026, employers will have new obligations in relation to harassment of employees by third parties, alongside a strengthened duty to take all reasonable steps to prevent sexual harassment.
Sexual harassment and whistleblowing
Whistleblowing protection is not new. Under the Employment Rights Act 1996, workers who make a qualifying protected disclosure can be protected from detriment and, in the case of employees, automatic unfair dismissal. The Employment Rights Act 2025 has now expressly added sexual harassment to the list of matters which can constitute a qualifying disclosure. This means that an employee who raises concerns about sexual harassment may be protected under the whistleblowing legislation, provided the statutory requirements are met. They do not need to describe their complaint as “whistleblowing” or use any particular terminology.
Not every complaint about sexual harassment will amount to a protected disclosure. The statutory tests still apply, including the requirement for the worker to have a reasonable belief that the information tends to show the relevant wrongdoing and that the disclosure is in the public interest. However, employers should avoid assuming that a complaint described as a grievance cannot also be whistleblowing.
Why does this matter?
The protection against detriment is potentially broad. If an employee raises concerns about sexual harassment and subsequently suffers adverse treatment, the employer may need to demonstrate that the treatment was unrelated to the disclosure. This does not prevent an employer from taking legitimate disciplinary or performance management action against someone who has made a complaint. It does mean that decisions affecting the individual should be properly considered, consistently applied and supported by a clear evidential trail.
Harassment by customers and other third parties
The second change in the Employment Rights Act 2025 comes into force on 30 October 2026. Employers will have new obligations where employees are harassed by third parties in the course of their employment. A third party might be a customer, client, supplier, contractor, visitor or member of the public. This will be particularly relevant to businesses where employees regularly interact with members of the public, including retail, hospitality, leisure, healthcare and customer-facing service businesses.
The legislation does not mean that an employer becomes automatically liable whenever a customer behaves badly. The new provision applies where the employer has failed to take all reasonable steps to prevent the harassment. In the event of an act of harassment occurring, the practical questions for employers are not only, “What happened; what did the customer do?” and “How do we respond as the employer?” but also “What measures have we put in place to prevent this from happening?”
For example, if an employer knows that staff are regularly subjected to racist abuse, sexual comments or other discriminatory conduct from customers, simply accepting that behaviour as an inevitable part of the job is unlikely to be an adequate response.
The strengthened duty to prevent sexual harassment
As part of the Employment Rights Act 2025, from 30 October 2026, the existing duty on employers to take reasonable steps to prevent sexual harassment will become a duty to take all reasonable steps.
The change may seem small in the wording alone, but it is significant in relation to the difference it will make to employers. Having a harassment policy and requiring employees to complete some training may not, on their own, demonstrate that an employer has taken all reasonable steps to prevent its staff being subjected to harassment. Employers should consider the particular risks arising in their own workplace and what they can reasonably do to address them.
That might include:
- Carrying out or updating harassment risk assessments;
- Reviewing policies and reporting arrangements;
- Training managers on dealing with complaints;
- Providing employees with clear reporting routes;
- Addressing risks arising from customers, clients and other third parties;
- Setting clear expectations about acceptable behaviour; and
- Recording incidents and the action taken in response.
There is no single checklist which every SME must follow. What is reasonable will depend on the circumstances, including the nature and size of the business and the risks faced by its employees.
As specialist employment solicitors, we advise all employers to consider this carefully and keep a record of having done so, along with any changes made or decisions taken as to how they intend to prevent harassment from occurring. For most businesses, the sensible response is to undertake a practical review and to consider the following steps:
- Review internal HR policies: Check that your whistleblowing, bullying and harassment policies reflect the new position and make clear that concerns about sexual harassment can be raised.
- Consider third-party risks: Think beyond the office. Where do employees interact with customers, clients or members of the public? Consider premises, telephone calls, online interactions, business travel and events.
- Make reporting straightforward: Employees should know who to speak to and what will happen when they raise a concern. There should also be an alternative reporting route where the concern involves their usual manager.
- Train managers: Managers should understand how to recognise harassment, respond to complaints, identify potential whistleblowing and deal appropriately with unacceptable behaviour by customers or other third parties.
- Keep records: Record risk assessments, training, complaints, incidents and the action taken. If the business decides that a particular preventative measure is not reasonable or proportionate, recording the reasoning can also be valuable.
The common thread running through both changes is that what an employer does in practice matters. For whistleblowing, concerns about sexual harassment may now attract statutory protection. For third-party harassment, employers will need to demonstrate that they have taken all reasonable steps to prevent harassment from happening in the first place. While some business owners may feel this is bureaucracy for its own sake, our view is that it is about understanding the risks to that particular business, putting in place tangible measures to prevent harassment form taking place, providing clear routes for raising concerns, equipping managers to respond properly and being able to demonstrate that the business has acted appropriately when problems arise.
Employers should therefore undertake a review now and test whether their existing arrangements work in the real world, and are in line with the Employment Rights Act 2025 – particularly when the person causing the problem is not an employee, but a customer, client or other third party. Understanding the risks relevant to your specific business will help you to prepare more effectively for this change in your legal obligations.
How can GA Solicitors help?
Taking proactive steps now can help employers deal with these upcoming changes with confidence and minimise any potential issues in the future.
If you would like advice on how these changes may affect your business, or assistance reviewing your employment procedures and documentation, our employment solicitors in Plymouth would be pleased to help.
At GA Solicitors, our experienced Employment Law team advises both employers and employees across Plymouth, Devon and the wider South West on workplace disputes, tribunal claims and changing employment legislation.
Call our specialist team today on 01752 203500 or email equiries@GAsolicitors.com. Ranked in The Legal 500, you can be assured you are in the best possible hands.
All content on this website (inclusive of guides, blogs and imagery) is strictly copyrighted by Gill Akaster LLP, trading as GA Solicitors. It is not to be used by any third party without prior contact and permission. Any requests for content should be sent to katy.mckenna@GAsolicitors.com.