UK Third-Party Harassment Employer Duty Starts 30 October 2026

UK Third-Party Harassment Employer Duty Starts 30 October 2026

The Secretary of State made SI 2026/1065 on 1 October 2026, fixing 30 October 2026 as the day sections 20, 21 and 22 of the Employment Rights Act 2025 come into force in England, Wales and Scotland. Until then, the third-party harassment duty is not law.

Information last verified on 6 October 2026. This is a developing story; we update it as the record changes.

Status: The Regulations were made on 1 October 2026. Sections 20, 21 and 22 of the Employment Rights Act 2025 come into force on 30 October 2026 and are not in force as at 6 October 2026.

Jurisdiction scope: Sections 20, 21 and 22 of the Employment Rights Act 2025 are expressed to extend to England and Wales and Scotland. Northern Ireland is outside these sections and legislates separately on equality. Dates in this article are United Kingdom dates and every figure is tagged where one appears. For the full picture of which provisions of the Act are already live, see our running commencement timeline for the Employment Rights Act 2025.

What Happened

The Employment Rights Act 2025 (Commencement No. 6 and Transitional and Saving Provisions) Regulations 2026, SI 2026/1065 (C. 87), were made on 1 October 2026 and signed by Sonny Leong, Parliamentary Under-Secretary of State at the Department for Business, Innovation, Science and Trade. The preamble records that the Secretary of State acted "in exercise of the powers conferred by sections 155 and 159(3) of the Employment Rights Act 2025".

Those two powers do different jobs. Employment Rights Act 2025 (c. 36), s. 159(3) is the commencement power for everything the Act did not switch on at Royal Assent or two months later, providing that "The other provisions of this Act come into force in accordance with regulations made by the Secretary of State". Employment Rights Act 2025 (c. 36), s. 155 is the separate power to make "such transitional or saving provision as the Secretary of State considers appropriate".

Regulation 3 is the operative provision. It opens "The following provisions of the 2025 Act come into force on 30th October 2026" and lists, at paragraphs (a) to (c):

(a) section 20 (employers to take all reasonable steps to prevent sexual harassment); (b) section 21 (harassment by third parties); (c) section 22 (sexual harassment: power to make provision about "reasonable steps");

The significance is in what came before. Until 1 October 2026 those three sections had no commencement date whatsoever. The Act received Royal Assent on 18 December 2025, and the only commencement information carried on each of the three section pages at legislation.gov.uk was the bare note that the section was "not in force at Royal Assent, see s. 159(3)". Section 21 had sat unscheduled for more than nine months while other parts of the Act were commenced in five earlier tranches; the explanatory note confirms that these are "the sixth commencement regulations made under the 2025 Act".

Regulation 3 also commences five further blocks of the Act on the same day. Section 56 and Schedule 5 (seafarers' wages and working conditions) is commenced outright, and the remaining four are commenced "so far as not already in force": section 59 (right of trade unions to access workplaces), section 60 and Schedule 6 (trade union recognition), section 64 (facilities provided to trade union officials and learning representatives) and section 65 (facilities for equality representatives).

The trade union material carries most of the instrument's bulk, and its cut-off is a date of filing rather than a date of conduct. Regulation 4 disapplies long lists of Schedule 6 paragraphs "in cases where an application under paragraph 11 or 12 of Schedule A1 to the 1992 Act ... was received by the Central Arbitration Committee before 30th October 2026", with parallel sub-paragraphs keyed to applications under other paragraphs of that Schedule. Regulations 5 and 6 are savings of a different shape, preserving the effect of declarations the Committee issued before that date. Regulation 7 limits the section 64 amendments to failures occurring on or after it, and regulation 8 treats the notice and training conditions in section 168B(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 as satisfied for employees who had carried out equality representative functions for a continuous period of six months or more immediately beforehand and who acquired that function by being appointed or elected in accordance with the rules of the trade union.

What the Law Actually Says

Section 21: the new third-party duty

Employment Rights Act 2025 (c. 36), s. 21 is a single amending instruction. It directs that in section 40 of the Equality Act 2010, "after subsection (1) insert" the following:

(1A) An employer (A) must not permit a third party to harass a person (B) who is an employee of A.

(1B) For the purposes of subsection (1A), A permits a third party to harass B only if:

(a) the third party harasses B in the course of B's employment by A, and

(b) A failed to take all reasonable steps to prevent the third party from doing so.

(1C) In this section "third party" means a person other than:

(a) A, or

(b) an employee of A.

Three features of that drafting carry the weight. The duty is framed as a prohibition on the employer rather than as a deeming of the third party's conduct onto it. The gateway in subsection (1B) is cumulative, requiring both that the harassment occurred in the course of the employee's employment and that the employer failed to take all reasonable steps. And the definition in subsection (1C) is residual: anyone who is neither the employer nor one of the employer's employees is a third party.

Harassment itself is not defined in section 40. It takes its meaning from Equality Act 2010, s. 26, which covers unwanted conduct related to a relevant protected characteristic that has the purpose or effect of "violating B's dignity" or "creating an intimidating, hostile, degrading, humiliating or offensive environment for B", unwanted conduct of a sexual nature, and the less-favourable-treatment limb in section 26(3). The relevant protected characteristics listed in Equality Act 2010, s. 26(5) are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. The new section 40(1A) duty is therefore not confined to sexual harassment; it reaches harassment related to any of those seven characteristics, which is the main reason it is a wider instrument than the 2024 preventative duty discussed next. For the standing framework the amendment sits inside, see how the Equality Act 2010 handles harassment at work.

Acas, as a statutory body, describes the categories the residual definition captures in plain terms, listing "third parties", and giving as examples "customers, clients and members of the public", among the people an employee may encounter because of their job, and its sexual harassment guidance already carries the dated note that "From 30 October 2026, the law will be changed for sexual harassment. Employers will be liable unless they have taken all reasonable steps to prevent it."

Section 20: one inserted word

Employment Rights Act 2025 (c. 36), s. 20 is shorter still. It provides that in section 40A of the Equality Act 2010, "in subsection (1), before 'reasonable steps' insert 'all'".

The duty being amended is recent. Equality Act 2010, s. 40A was inserted on 26 October 2024 by the Worker Protection (Amendment of Equality Act 2010) Act 2023 (c. 51), ss. 1 and 5(3), and currently reads: "An employer (A) must take reasonable steps to prevent sexual harassment of employees of A in the course of their employment." Equality Act 2010, s. 40A(2) confines "sexual harassment" in that subsection to conduct of the kind described in section 26(2).

The enforcement architecture for section 40A is unusual, and the inserted word acts on it directly. Equality Act 2010, s. 40A(3) makes a contravention "enforceable as an unlawful act under Part 1 of the Equality Act 2006" and then narrows the routes, stating that it is "enforceable only by the Commission under that Part or by an employment tribunal in accordance with section 124A (compensation uplift in employee sexual harassment cases)". Consistently with that, Equality Act 2010, s. 120(8) excludes references to "section 40A(1) or 60(1) or 60A(1)" from the employment tribunal's Part 5 jurisdiction, and section 120(9) preserves only the section 124A route back in. There is no standalone claim for breach of the preventative duty.

Section 124A sets the mechanics. It applies where a tribunal has found a contravention of section 40 "which involved, to any extent, harassment of the kind described in section 26(2)" and has ordered compensation under section 124(2)(b). Section 124A(2) then obliges the tribunal to "consider whether and to what extent the respondent has also contravened section 40A(1)", and section 124A(4)(b) caps any uplift at "no more than 25% of the amount awarded under section 124(2)(b)". That cap is expressed as a proportion rather than a cash sum; the underlying award is made by a Great Britain employment tribunal and denominated in pounds sterling (GBP).

Two consequences follow from the text once sections 20 and 21 are both in force. The standard a respondent has to meet to avoid the uplift becomes "all reasonable steps" rather than "reasonable steps". And because section 124A(1)(a) is keyed to a contravention of section 40 generally, a contravention of the new section 40(1A) involving conduct of a sexual nature falls within the same gateway. The exclusion in section 120(8) is drawn by reference to sections 40A(1), 60(1) and 60A(1) and does not name section 40, so on the face of section 120(1)(a) a complaint about a contravention of section 40(1A) is a complaint relating to a contravention of Part 5. How tribunals apply that reading is for them.

Timing interacts with a provision already live. Employment Rights Act 2025 (c. 36), s. 152 and Schedule 12 increase employment tribunal time limits "from three months to six months", and section 152 came into force on 1 October 2026 by SI 2026/954, reg. 3 (with reg. 4). A complaint about conduct on or after 30 October 2026 therefore sits inside the six-month tribunal time limit that began at the start of October 2026 rather than the former three-month window.

Section 22: a power, not a rule

Employment Rights Act 2025 (c. 36), s. 22(2) inserts a new section 40B into Part 5, Chapter 1 of the Equality Act 2010. Subsection (1) of the new section provides that "Regulations may specify steps that are to be regarded as 'reasonable' for the purpose of determining whether, for the purposes of this Act, an employer (A) has taken, or failed to take, all reasonable steps to prevent sexual harassment of an employee of A (see, in particular, sections 40 and 40A and section 109)".

The illustrative list in section 40B(2) covers "carrying out assessments of a specified description", "publishing plans or policies of a specified description", "steps relating to the reporting of sexual harassment" and "steps relating to the handling of complaints". Section 40B(3) allows such regulations to require an employer to have regard to specified matters when taking those steps. Section 22(3) then adds a new paragraph (aa) to the list in section 208(5) of the Equality Act 2010, described in the amending text as the list of "regulations subject to affirmative procedure".

Two limits are on the face of the section. First, it is a power and nothing more: no step is specified until regulations are made, and none have been made as at 6 October 2026. Second, its scope is narrower than the section 21 duty. Section 40B(4) defines "sexual harassment" for its purposes as "harassment of the kind described in section 26(2)", so the power does not extend to specifying reasonable steps in relation to harassment related to race, religion or belief, disability, age, gender reassignment or sexual orientation, even though the new section 40(1A) duty covers all of them.

What was repealed in 2013, and how the new text differs

The 2010 Act as enacted already contained a third-party harassment regime. Equality Act 2010, s. 40(2) to (4) read:

(2) The circumstances in which A is to be treated as harassing B under subsection (1) include those where:

(a) a third party harasses B in the course of B's employment, and

(b) A failed to take such steps as would have been reasonably practicable to prevent the third party from doing so.

(3) Subsection (2) does not apply unless A knows that B has been harassed in the course of B's employment on at least two other occasions by a third party; and it does not matter whether the third party is the same or a different person on each occasion.

(4) A third party is a person other than:

(a) A, or

(b) an employee of A's.

Those subsections were omitted on 1 October 2013 by the Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 65 and 103(3), commenced by SI 2013/2227, art. 2(c) (with art. 4). The textual amendment note on the current section 40 page records the omission.

Reading the two texts together, the 2026 provision is built differently in three respects.

The mechanism changes. The repealed text was a deeming provision: it listed "circumstances in which A is to be treated as harassing B under subsection (1)", so the employer's liability was routed through the primary prohibition on the employer harassing the employee. Section 40(1A) instead states a freestanding obligation, with section 40(1B) stating the conditions without which an employer does not permit the harassment at all.

The standard changes. The repealed limb asked whether the employer "failed to take such steps as would have been reasonably practicable"; the new limb asks whether it "failed to take all reasonable steps". Those are different formulations, and the new one is already a known phrase in the Act rather than a fresh one. Equality Act 2010, s. 109(4) has since 2010 given an employer a defence to vicarious liability for its own employee's act where it "took all reasonable steps to prevent A" from doing that thing or anything of that description.

The prior-knowledge condition goes. Section 40(3) as enacted was a threshold requirement rather than a factor: the deeming did not apply at all unless the employer knew of at least two other occasions of third-party harassment of that employee. Nothing of that kind appears in the new subsections. On the text, a first incident can engage the duty, and the operative question moves entirely to whether all reasonable steps were taken.

One narrowing runs the other way. Section 40(1) covers both an employee and "a person ... who has applied to A for employment", while section 40(1A) is expressed only in relation to "a person (B) who is an employee of A", and section 40(1B)(a) requires the harassment to occur "in the course of B's employment by A".

What Happens Next

The fixed point is the date. Sections 20, 21 and 22 come into force on 30 October 2026 under SI 2026/1065, reg. 3, which is 29 days after the instrument was made and a little over ten months after Royal Assent. Nothing further needs to be laid for that to happen.

The open item is the section 40B regulations. None have been made as at 6 October 2026, and the section cannot operate until some are, because it specifies nothing itself. Until regulations arrive, what counts as a reasonable step, and what counts as all of them, is a question for employment tribunals on the facts of each case, informed by whatever guidance the Equality and Human Rights Commission and Acas publish. It would be guesswork to say what any future regulations will specify beyond the four categories section 40B(2) names, and this article does not attempt it. The amending text does indicate the procedure, describing the list it adds section 40B to, at section 208(5) of the Equality Act 2010, as covering "regulations subject to affirmative procedure".

Three developments would turn this into a different story. Regulations under section 40B being laid would convert an open textual question into a specified checklist. Revised Equality and Human Rights Commission guidance addressing the section 40(1A) duty, as distinct from the existing section 40A material, would change what employers are measured against in practice. And the first appellate decisions construing "permit" and "all reasonable steps" in the new subsections would settle questions the drafting leaves open, including how section 40(1B)(a) applies to conduct occurring partly outside the workplace. This article makes no prediction about how any tribunal or court will decide any of that.

One record-keeping development is also due. As at 6 October 2026 the revised texts of Equality Act 2010, ss. 40, 40A and 124A on legislation.gov.uk still list the 2025 Act insertions under "Changes and effects yet to be applied", and the three Employment Rights Act 2025 sections still carry only the Royal Assent note; the revised corpus has not absorbed SI 2026/1065, which is why the made instrument is the operative source for the date. Anyone checking the position after 30 October 2026 should expect the section 40 page itself to show subsections (1A) to (1C).

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

Describing section 21 as a new duty understates what happened. Parliament has reinstated a protection it removed in 2013, and the thirteen-year round trip is the interesting part, because the repealed version had a structural defect that the replacement does not share. The defect was section 40(3). Requiring an employer to know of at least two prior occasions of third-party harassment of the same employee put the first two incidents outside the regime entirely, and a duty that engages only once a pattern is established cannot be used to prevent the pattern. Section 40(1A) to (1C) contains no knowledge condition and no incident count. The whole of the employer's answer now lives in section 40(1B)(b), the question whether it "failed to take all reasonable steps", which moves the argument from a threshold inquiry answerable from an incident log to an evidential inquiry about systems.

The shift from deeming to prohibition is the second structural change, and it is easy to miss because the words are so short. The choice between drafting a new obligation into section 40 and drafting it into section 40A is not stylistic: the two sections sit on different sides of the Act's jurisdictional line, and section 124A exists because the preventative duty needed a bridge back across it. Parliament put the third-party duty on the side that does not need one.

Section 20 is a clear example of a one-word amendment doing real work. Inserting "all" before "reasonable steps" adds no new obligation; it raises the bar on one in force only since 26 October 2024, and it widens the two existing enforcement routes rather than creating a third. It also aligns the preventative duty with a standard the Act has used since 2010, since the section 109(4) defence is expressed in the same words. Whatever reasoning tribunals have built around that phrase in the vicarious liability context becomes relevant to section 40A(1) in a way it previously was not.

The gap worth watching is in section 22. The section 40B power is confined by its own subsection (4) to sexual harassment within section 26(2), while the section 21 duty reaches harassment related to all seven characteristics in section 26(5). If regulations are made specifying assessments, published policies, reporting routes and complaint handling for sexual harassment, the scheme will carry a specified standard for one category of third-party harassment and an unspecified one for the rest. That follows from where the power was placed rather than from oversight, but it means one employer could face a regulation-defined standard for one complaint and a tribunal-defined standard for another arising from the same incident.

The residual definition in section 40(1C) carries much of the provision's practical reach. Defining a third party as anyone other than the employer or its employees describes a very wide class, and it bears most heavily on work that consists of contact with that class: retail, hospitality, transport, health and social care, public-facing counters, and any site hosting contractors whose staff are by definition not employees of the host. The duty is about what the employer did rather than about controlling the third party, which is the only way such a duty could operate. What all reasonable steps amounts to where the harassing party is a member of the public who then leaves the premises is an open question that no regulation currently addresses.

How This Affects You

This section sets out what the provisions say, in general terms. It is not advice about any particular situation.

Before 30 October 2026 the position is the pre-amendment one: Equality Act 2010, s. 40(1A) to (1C) does not exist, section 40A(1) reads "reasonable steps", and there is no section 40B. Conduct is governed by the law as it stands on the date of the conduct.

From 30 October 2026, an employer in scope must not permit a third party to harass one of its employees, and section 40(1B) treats it as having permitted the harassment where the conduct occurred in the course of the employee's employment and the employer failed to take all reasonable steps to prevent it. The residual definition in section 40(1C) takes in customers, clients, patients, service users, visitors and the staff of contractors and suppliers. The separate section 40A(1) duty becomes a duty to take all reasonable steps on the same date, still without a standalone tribunal claim of its own. Because no regulations exist under section 40B, what tribunals consider in deciding whether all reasonable steps were taken is drawn from the evidence and from published guidance rather than from a statutory list.

Two adjacent provisions are already live and often relevant to the same facts. Employment Rights Act 2025 (c. 36), s. 23 came into force on 6 April 2026 by SI 2026/323, reg. 3(1) and (2), and amends section 43B(1) of the Employment Rights Act 1996 so that a disclosure "that sexual harassment has occurred, is occurring or is likely to occur" is capable of qualifying for protection; our page on protected disclosures about sexual harassment covers that route. Evidence questions also arise early in harassment complaints, which is why the law on recording a meeting at work is worth understanding before a grievance or disciplinary process begins rather than after.

General information, not legal advice. This article sets out the text of SI 2026/1065 and of the provisions it commences, as verified against legislation.gov.uk on 6 October 2026. It addresses the law of England and Wales and of Scotland; Northern Ireland is outside the sections discussed and legislates separately. Nothing here is advice about any particular workplace, complaint or claim, and the law may change after the date of verification. Anyone who needs to know how these provisions apply to their own circumstances should consult a solicitor qualified in the relevant jurisdiction.

Related articles

• Employment Rights Act 2025 commencement timeline
• Harassment and discrimination under the Equality Act 2010
• Employment tribunal time limits after the move to six months
• Whistleblowing and protected disclosures at work
• Recording conversations and meetings at work

Last updated: 2026-10-06. This is a developing story; details verified as of 2026-10-06.

Frequently Asked Questions

Is the third-party harassment duty in force now?

No. SI 2026/1065 was made on 1 October 2026 and regulation 3 brings sections 20, 21 and 22 of the Employment Rights Act 2025 into force on 30 October 2026. As at 6 October 2026 none of the three sections is in force, Equality Act 2010, s. 40 does not yet contain subsections (1A) to (1C), and s. 40A(1) still reads reasonable steps rather than all reasonable steps.

What exactly will Equality Act 2010, s. 40(1A) require?

Employment Rights Act 2025 (c. 36), s. 21 inserts a provision that an employer (A) must not permit a third party to harass a person (B) who is an employee of A. Section 40(1B) provides that A permits it only where the third party harasses B in the course of B's employment by A and A failed to take all reasonable steps to prevent the third party from doing so. Both limbs have to be met.

Who counts as a third party?

Equality Act 2010, s. 40(1C), as inserted by Employment Rights Act 2025 (c. 36), s. 21, defines a third party as a person other than the employer or an employee of the employer. That residual definition takes in customers, clients, patients, service users, visitors, and the employees of contractors and suppliers, because none of them is an employee of the employer in question.

Does the duty cover harassment other than sexual harassment?

On the text, yes. Section 40(1A) uses the word harass without limitation, and harassment is defined by Equality Act 2010, s. 26. Section 26(5) lists the relevant protected characteristics as age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, and s. 26(2) and 26(3) add the sexual-conduct limbs. The separate duty in s. 40A, and the regulation-making power in the new s. 40B, are confined to sexual harassment within s. 26(2).

What does section 20 change by adding one word?

Employment Rights Act 2025 (c. 36), s. 20 inserts all before reasonable steps in Equality Act 2010, s. 40A(1), the sexual-harassment prevention duty inserted on 26 October 2024 by the Worker Protection (Amendment of Equality Act 2010) Act 2023 (c. 51), ss. 1 and 5(3). From 30 October 2026 the duty is to take all reasonable steps. That standard also governs the compensation uplift route in s. 124A, under which a tribunal must consider whether the respondent contravened s. 40A(1) and may award up to 25 per cent of the s. 124(2)(b) award.

Didn't the Equality Act already have a third-party harassment rule?

It did, and it was repealed. Equality Act 2010, s. 40(2) to (4) as enacted treated an employer as harassing an employee where a third party harassed the employee in the course of employment and the employer failed to take such steps as would have been reasonably practicable, but only if the employer knew of at least two other occasions. Those subsections were omitted on 1 October 2013 by the Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 65 and 103(3), commenced by SI 2013/2227, art. 2(c). The 2026 text is a freestanding prohibition, uses all reasonable steps, and contains no prior-knowledge condition.

Are there regulations saying what a reasonable step is?

Not as at 6 October 2026. Employment Rights Act 2025 (c. 36), s. 22 inserts Equality Act 2010, s. 40B, which is a power for regulations to specify steps regarded as reasonable, including carrying out assessments, publishing plans or policies, steps relating to reporting and steps relating to handling complaints. No regulations under it have been made, so until some are, the question is for employment tribunals on the evidence.

Do these sections apply in Northern Ireland?

No. Sections 20, 21 and 22 of the Employment Rights Act 2025 are expressed to extend to England and Wales and Scotland. Northern Ireland is outside them and has its own equality legislation. Other provisions of the same Act have wider extent, so extent has to be checked section by section.

What else does SI 2026/1065 commence on 30 October 2026?

Regulation 3 also commences section 56 and Schedule 5 on seafarers' wages and working conditions, section 59 on the right of trade unions to access workplaces, section 60 and Schedule 6 on trade union recognition, section 64 on facilities for trade union officials and learning representatives, and section 65 on facilities for equality representatives, in each case so far as not already in force. Regulations 4 to 8 carry the transitional and saving provisions, including disapplications keyed to applications received by the Central Arbitration Committee before 30 October 2026.