ERA 2025: What is changing in the duty to prevent sexual harassment from 30 October 2026?

The current legal position

Since 26 October 2024, all employers have had a positive duty to prevent sexual harassment in the workplace. Sexual harassment occurs where someone engages in unwanted conduct of a sexual nature that has the purpose or effect of violating the other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Under the Equality Act 2010, a person sexually harasses someone where:

• they engage in unwanted conduct of a sexual nature; and
• the conduct has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

It is also sexual harassment where a person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex and:

• the conduct has the purpose or effect referred to above; and
• because of the other person’s rejection of or submission to the conduct, they are treated less favourably than if they had not rejected or submitted to the conduct.

Unwanted conduct is wide-ranging and can include, but is not limited to: sexual comments or jokes, including “banter”, whether at work, outside of work or in work related groups such as WhatsApp groups; suggestive looks, staring; leering; propositions; sexual advances; and sexual gestures. The conduct does not need to involve touching or spoken words, and can include the sharing of sexual images, memes and gifs. Equally, under the second definition above, it can include ending a romantic relationship with a colleague, submitting to or rejecting unwanted sexual advances or unwanted out of work contact (for example text messages or approaches on social media).

The intention of the person engaging in the sexual harassment is irrelevant. It is also irrelevant whether or not someone was the intended target of sexual harassment. A person can be the subject of sexual harassment even where they were merely a witness to the harassment, overhead workplace banter, or were sent an explicit image or offensive joke by mistake. It should further be noted that even where a person joins in with “banter” or does not appear offended in the moment, this does not mean that they have not been subject to sexual harassment.

Under the current regime schools and multi-academy trusts (“MATs”) must take reasonable steps to prevent sexual harassment of staff, building on existing Equality Act 2010 protection. The EHRC’s technical guidance (updated September 2024) covers what counts as a reasonable steps and third-party harassment, which employment tribunals will have regard to in relevant claims.

The Duty to take Reasonable Steps to prevent Sexual Harassment in the Workplace

The duty is preventative and anticipatory. Schools and MATs should anticipate where sexual harassment could occur (for example lone or night working, power imbalances, or vulnerable staff) and act before it happens, and act again if it does. The duty to take reasonable steps does not extend to harassment related to other protected characteristics. Harassment related to other protected characteristics is outside the scope of this briefing.

To comply with the current duty, Schools and MATs should:

• Consider the risk of sexual harassment occurring in the workplace;
• Consider what steps they could take to reduce those risks;
• Consider the steps it would be reasonable to take; and
• Implement those steps.

Whether the steps taken are reasonable is assessed objectively, having regard to factors such as the size and resources of the school or MAT, the risks present within the workplace, and the extent of contact with third parties. However, all schools and MATs are also subject to the Public Sector Equality Duty and should ensure that their obligations in this area are treated with appropriate seriousness.

Third-party harassment

Although the Equality Act 2010 itself does not apply to third party harassment, since 2024 the preventative duty does. Schools and MATs are required to take reasonable steps to prevent sexual harassment of workers by third parties, such as clients and customers. In an education context, this may mean contractors, visitors, pupils or even parents.

The above EHRC guidance suggests that Schools and MATs can take steps to prevent third-party harassment by:

• Encouraging workers to report third-party harassment;
• Adopting a zero-tolerance policy to third-party harassment and communicating that to staff; and
• Developing a protocol to manage reports of third-party harassment.

A Schools or MATs Behaviour Policy will likely cover any such conduct by pupils, but you should consider whether you have adequate policies in place to cover potential sexual harassment by other third parties such as consultants, contractors, visitors and parents.

Non-disclosure agreements (“NDA”)

NDAs cannot be used to prevent whistleblowing disclosures, disclosures by victims of crime, or (in higher education) misconduct complaints; registered higher education providers are barred from using NDAs with staff, students or visiting speakers over misconduct, including sexual harassment.

Whistleblowing and sexual harassment

Since 6 April 2026, under the Employment Rights Act 2025 (“ERA 2025”) reforms, a complaint about sexual harassment constitutes a ‘qualifying disclosure’ for whistleblowing purposes. Note that to gain whistleblowing protection, an individual has to establish that their complaint is in the public interest. In a school setting, it will most likely be considered in the public interest given that such conduct could impact the wider school community and the school’s ability to comply with its safeguarding obligations.

Consequences of non-compliance

The EHRC can take enforcement action, including investigations and injunctions, against non-compliant employers. Employment tribunals can also uplift compensation by up to 25% where harassment is found and the employer cannot show compliance with the duty – though this uplift only attaches to a successful harassment claim, not as a standalone claim.

What’s changing from 30 October 2026? A greater duty: “all” reasonable steps to prevent sexual harassment in the workplace

ERA 2025 includes several measures which increase employer obligations to protect staff from harassment, not all of which are yet in force.

The key changes are as follows:

• From 30 October 2026, the anticipatory duty to prevent sexual harassment will be strengthened. Instead of ‘reasonable steps’, schools and MATs will instead be required to take ‘all’reasonable steps to prevent sexual harassment in the workplace. This is a positive duty and sets a high bar. Regulations will set out prescribed steps that an employer must take to prevent sexual harassment, but somewhat surprisingly these regulations are not expected until after the duty to take ‘all reasonable steps’ comes into force, probably in 2027.
• From 30 October 2026, schools and MATs will be liable for third party harassment. Unlike the 2024 reforms, this applies to every type of harassment, not just sexual harassment. Third parties could include parents and carers, visitors and volunteers; contractors and suppliers; members of the public; and even pupils. This is the case unless a school or MAT can successfully evidence invoke the statutory defence which means that it can show it took all reasonable steps to prevent the unwanted conduct from taking place.
• From 1 October 2026, employment tribunal time limits for most types of claims (including sexual harassment claims) will increase from the current 3 months to 6 months, subject to the usual rules on extension of time pursuant to Acas Early Conciliation. However, it should be noted that this new time limit will only apply to claims arising from acts or omission that took place on or after 1 October 2026.
• Likely from 2027, NDAs will be void if they seek to prevent someone from talking about workplace discrimination, harassment or how an employer handled those complaints.

Together, these broaden an employer’s liability in harassment claims. In particular, schools and MATs will be held liable for all types of harassment by third parties while on site.

What steps should schools and MATs be taking now?

We are already seeing rising numbers of sexual harassment complaints from school and MAT clients, ahead of the ERA 2025 changes taking full effect.

Practical steps to take now:

• Designate a named senior lead for the anticipatory duty to prevent sexual harassment within each school and, for MATs, at trust level, with clear reporting lines to governing bodies or trust boards on preventative measures and complaints.
• Carry out MAT wide and individual school-level sexual harassment risk assessments and ensure that they include third-party risk, which should be reviewed regularly and after every incident or allegation of harassment. Identify proportionate steps to mitigate against those risks. The risk assessment should be reviewed regularly and revisited following any incident, complaint or allegation to update risks, to capture learning and identify further actions required.
• In relation to specific risks, schools and MATs should:

• • Review the School or MAT’s Equality, Anti-Harassment and Bullying, Grievance and Whistleblowing policies to reflect the correct legal position from October 2026 onwards.
  • Ensure clear, accessible reporting routes (HR, senior leaders, whistleblowing), with staff trained to respond consistently, treat informal disclosures seriously, and handle reports fairly without detriment.
  • Provide tailored training for members of staff across all levels: governors on oversight duties, senior leadership teams on identifying and responding to risk, HR and managers on handling complaints, and all staff on unacceptable conduct and reporting routes, refreshed regularly and reinforced with active bystander training.
  • Assess workplace culture through anonymous staff surveys, focus groups and exit interviews. Employment tribunals look beyond written policies to how a school or trust actually operates in practice. The policies will not work if they are not being correctly implemented and followed.
  • Keep contemporaneous records of decisions, complaints and investigations, and gather witness evidence promptly — extended employment tribunal time limits make reliable contemporaneous records increasingly important.
  • Signpost staff who have suffered sexual harassment at work to available support.
  • Keep prevention of sexual harassment a standing item on senior leadership team agendas.
  • Ensure senior staff model the right behaviour
  • Promote an open and inclusive workplace culture, and ensure a zero tolerance approach to any form of harassment, discrimination or other unlawful behaviour

Schools and MATs that act now, taking a proactive approach, will be best placed to demonstrate compliance when it matters most. Watch for the 2027 regulations on “all reasonable steps” and updates to EHRC and other relevant statutory guidance.

 

This briefing is not intended to be a definitive statement of the law and is correct at the time of publication. It should not be taken as a substitute for professional legal advice. It does not represent the views of Winckworth Sherwood or any of the authors.

If your school or MAT require advice and assistance in relation to the new duty to prevent sexual harassment, including with regard to updating policies and procedures or supporting with an investigation, or if you need support with any other school HR or employment law related matter, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on schoolshr@wslaw.co.uk or 0345 026 8690.