SEXUAL HARASSMENT: HAVE YOU RISK-ASSESSED SOMEONE ELSE'S WORKPLACE?

A fundamental principle of discrimination law is that conduct is not judged simply by what the person responsible intended. Its effect on the person subjected to it matters, and people can quite legitimately react differently to the same conduct. Context and the circumstances of the individual therefore matter.

But there is another side to this which employers may not yet have fully appreciated. The Equality Act already uses the “all reasonable steps” standard as the defence to an employer's liability for discriminatory acts committed by its employees. From 30 October 2026, that standard becomes still more important. The preventative duty in relation to sexual harassment is strengthened from “reasonable steps” to “all reasonable steps”. Separately, employers can become liable where their employees are harassed by third parties in the course of their employment, including harassment related to protected characteristics other than sex, unless they can show that they took all reasonable steps to prevent it.

An assessment based simply upon what the existing workforce has historically tolerated is therefore a dangerous one.

Suppose there has been low-level sexual “banter” at Company A for years. Nobody has complained and management assumes that nobody is particularly troubled by it. An employee of Company B, an important customer, then visits A's office or site in the course of her employment and is subjected to the same behaviour by one of A's employees. She regards it as sexual harassment and complains.

Company B now has a problem of its own. If it has not taken all reasonable steps to protect its employee from foreseeable third-party harassment, it may itself face an Employment Tribunal claim. At the same time, it has every reason to demand action from Company A and, potentially, to reconsider the commercial relationship.

And that leads to a question I suspect relatively few employers have yet asked when preparing for October: when assessing “all reasonable steps”, have you risk-assessed what your employees may encounter when you send them to customers', suppliers' and contractors' premises?

The relevant workplace is no longer necessarily your workplace, and the relevant culture is not necessarily one you control. “Nobody here has ever complained” was never a particularly satisfactory measure of workplace culture.

From October, it could also reveal that an employer has been assessing the wrong risk, in the wrong place, involving the wrong people.