The Employment Rights Act 2025 (“ERA 2025”) introduces significant new duties for employers. Are you ready?

The ERA 2025 introduces a crucial obligation on employers to take reasonable steps to prevent third-party harassment, or they otherwise may be liable for unwanted incidents that occur in the workplace.

Here's what employers need to know:

You are a UK employer. You’ve got a team on the front line, dealing with the public every day. It’s a tough gig, and generally, your staff generally handle it well.

But what happens when a customer walks in and racially abuses your employee? Or worse, sexually harasses them?

Historically, employers would not be liable for the conduct of third parties. If you supported the staff member afterward and made a statement saying, “we don’t tolerate this”, you were probably in the clear.

Not anymore.

The ERA 2025 is ripping up that old rulebook and is modernising employment law to extend protections to workers across the country. From 30 October 2026, a single incident of harassment from a third party (like a customer) is enough to result in a claim at the Employment Tribunal. We aren’t talking about a pattern of behaviour here. One incident. One liability.

Section 21 of the ERA 2025, introduces a new head of claim under section 40 of the Equality Act 2010 (“EqA 2010”) which states:

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

A permits a third party to harass B only if—

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.

In this section “third party” means a person other than—

(a) A, or

(b) an employee of A.

This provision extends protection beyond internal workplace interactions and ensures that employees are safeguarded from any discriminatory conduct in circumstances where it originates from individuals who are not directly involved with the employer. This section applies to all employees and covers harassment based on protected characteristics under section 4 of the EqA 2010.

Here is why Section 21 of the ERA 2025 needs to be top of your priority list, and what you need to do about it.

The “All Reasonable Steps” Trap

The new law inserts a fresh claim into the EqA 2010 (Section 40). It essentially says: an employer must not permit a third party to harass an employee.

And here is the kicker: you are deemed to have “permitted” it if:

The harassment happened during their employment.

You failed to take all reasonable steps to prevent it.

That’s right. The duty is now preventative. Having a “zero-tolerance” poster on the wall and being nice to the victim after the incident may no longer be a sufficient defence. The law now assumes that an employer is now liable unless you can prove you did absolutely everything you reasonably could to stop the incident happening in the first place.

What Are “Reasonable Steps”?

I know what you are thinking: “How am I supposed to know what ‘all reasonable steps’ means? The law isn’t clear!”

You are right – there is no checklist. What is “reasonable” for massive retailers differs from what is “reasonable” for smaller businesses.

However, the Equality and Human Rights Commission (“EHRC”) guidance on sexual harassment and harassment at work provides a useful roadmap for employers seeking to comply with their positive legal duty. The Employment Tribunal will likely look at (but not limit itself to):

• Your Size and Resources: Can you afford training? Do you have a dedicated HR team?

• The Working Environment: Is it a quiet office or a chaotic pub at 2AM?

• The Nature of Contact: Do your staff interact with customers for 5 minutes or 5 hours?

• The Risks: Have you identified the specific risks of your workplace?

Your Strongest Defence: Risk Assessments

If there is one takeaway from this provisional change, it is this: Conduct a Risk Assessment. Now.

If a claim lands on your desk and you cannot produce a documented risk assessment showing how you identified risks and mitigated them, you will find it significantly harder to defend the complaint. You need to show you were proactive, not reactive.

Identify the risks. Where are your staff vulnerable?

Implement controls. How will you mitigate those risks? (Training, signage, security, de-escalation policies).

Explain your decisions. Did you decide not to install a security camera? Document why. A clearly written explanation is your best friend in a Tribunal.

The good news (yes, there is some)

Here is the silver lining: a step can be considered “reasonable” even if it would not have prevented the act of harassment.

Why? Because you cannot control a stranger walking through your door. The law understands that. They don’t expect you to be psychic. They expect you to be prepared.

If you have done the risk assessment, implemented a robust training policy, trained your staff, and documented your reasoning, a Tribunal is far more likely to accept that you did take “all reasonable steps”, even if the incident still occurred.

If you have not, then approach us to help.

The Bottom Line

The clock is ticking. Now that October is here, the onus is on you to prove you are innocent.

Don’t wait for a claim to test your luck. Start preparing your risk assessments and reviewing your policies now. A stitch in time saves… well, a hefty legal bill and a damaged reputation.

Asad Farooq is a Legal Consultant at Irwell Law who specialises in defending claims at the Employment Tribunal.

Need to ensure you are compliant? Contact the team at Irwell Law (TribunalEdge@irwell-law.com or info@irwell-law.com)

FAQs

Can an employer be liable for harassment by a customer?

Yes. From 30 October 2026, employers may be liable if a customer, client or other third party harasses an employee and the employer failed to take all reasonable steps to prevent it.

Does there need to be a pattern of behaviour?

No. A single incident may be enough to trigger liability.

What are reasonable steps?

The law does not provide a fixed checklist, but Tribunals may consider factors such as training, policies, risk assessments, reporting procedures and workplace-specific controls.

Should employers carry out a risk assessment?

Yes. A documented risk assessment is likely to be a key part of demonstrating that reasonable preventative steps were taken.

The Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) governs the relationships between employers, workers and trade unions and governs how unions secure recognition in the workplace.

What trade union changes does the Employment Rights Act 2025 introduce?

The reforms introduced under the Employment Rights Act 2025 (ERA 2025) amend Schedule A1 of TULRCA and aim to improve the recognition process. These changes affect employers and recognised trade unions and affect how terms are negotiated, how disputes are managed and how employers can communicate with employees without creating avoidable exposure.

From 30 October 2026, there are new rights and obligations on employers, including:

• A duty to inform workers of the right to join a trade union
• A new right for officials of qualifying unions to enter workplaces and communicate with workers
• New rights to accommodation and facilities for officials of recognised unions
• Improved trade union recognition rules

These measures improve trade union activity and further protect the legal framework around union involvement in the workplace and sit alongside the other trade union reforms that took place in April 2026.

The Duty to Inform Workers

The new reforms introduce a new duty on employers to inform their workers of their right to join a trade union. This new reform requires employers to actively ensure that workers are aware of their right to join a trade union. It is not enough to assume that employees know that they can join a union. This can require employers to update their documentation and reassess their employee processes.

Do trade unions have unrestricted access to workplaces?

Recognition is the core concept. Statutory recognition does not give unions unrestricted access to a business. Rather, it sets out principles intended to equally balance the interests of employers and unions. Employers should take reasonable steps to facilitate access and should not refuse access altogether unless it is reasonable in all the circumstances. On the other hand, unions should not unreasonably interfere with the employer’s business.

The new framework is particularly significant in situations where the employer and trade union cannot agree terms of access. The matter can be referred to the Central Arbitration Committee (CAC), which oversees the legal framework and has powers to determine access arrangements. It can also issue fines prescribed under legislation up to the sum of £500,000 for breaches of statutory agreements. Employers should engage with the access request and consider what arrangements can be made without disrupting the business. Employers should not assume that refusing to engage with an access request will make the issue disappear. One particular change is that where a recognition application is received, the bargaining unit will be frozen subject to the statutory rules.

Rights to Accommodation

The reform also requires employers to provide reasonable accommodation and facilities for union representatives carrying out their duties. This includes access to appropriate space and access to workplace communication systems where necessary. Employers are not required to provide whatever facilities are required; the reform is concerned with what is reasonable in the circumstances. Requests should be considered properly and should not be rejected automatically.

When can employers refuse trade union workplace access applications?

Employers are not required to accept all access applications. The application must be refused where there are genuine data protection concerns or where there is a risk of a criminal offence, national security or prejudice caused by the acceptance of the application. Employers may be able to refuse an application where there are health and safety concerns or in circumstances where they have received multiple outstanding requests.

Smaller employers who have fewer than 21 workers across their workplaces are exempt from the new provisions. This does not give an automatic right to ignore trade union law as other employment obligations can still apply depending on the circumstances.

What is the Central Arbitration Committee’s role in trade union disputes?

Where no agreement is reached, the trade union can apply to the CAC for determination. The CAC is an independent tribunal, and its general duty is to promote fair arrangements in the workplace. The CAC can deal with applications for recognition and derecognition, disclosure of information for collective bargaining, access determinations and enforcement.

A determination made by the CAC takes effect as if the parties had entered into an access agreement. Parties can vary and revoke an access agreement; however, there is a crucial requirement for any changes to be made in writing. A revocation or variation will not be effective unless it is made in writing and the parties have notified the CAC.

Next Steps

Trade union recognition applications must be taken seriously. The process has legal requirements and strict deadlines. Any attempts to interfere improperly can cause employers serious problems.

The new reforms give employers a reason to prepare for the upcoming developments. The correct approach depends on the size of the organisation and the arrangements already in place. HR materials must be updated to reflect the new duty to inform workers about trade union rights. Senior staff members should be offered the necessary training to avoid unlawful interference or detriment to workers. The biggest mistake would be to treat these reforms as something that only matters once a union appears at the workplace. The best approach is to review your current arrangements now.

Asad Farooq is a Legal Consultant at Irwell Law who specialises in defending claims at the Employment Tribunal.

Need to ensure you are compliant? Contact the team at [Irwell Law ](https://www.irwell-law.com/tribunal-defence)(TribunalEdge@irwell-law.com or info@irwell-law.com).

Frequently asked questions

Does statutory trade union recognition give unions unrestricted workplace access?

No. Recognition alone does not give unrestricted workplace access. Qualifying independent trade unions can request physical or digital access without already being recognised. Access is subject to statutory conditions and the terms of the relevant agreement or Central Arbitration Committee (CAC) determination.

Must employers provide every facility requested by union representatives?

No. For employees covered by the relevant statutory time-off provisions, the law requires employers, on request, to provide accommodation and facilities that are reasonable in all the circumstances for the relevant union duties or training. The representative’s role and statutory conditions matter, and employers must have regard to any relevant Acas Code of Practice.

How should employers prepare for trade union reforms?

General preparation may include reviewing existing union arrangements, HR materials and training needs. The government’s stated intention is for the duty to give workers a written statement about their right to join a trade union to start on 1 January 2027. The final requirements and commencement provisions need to be checked before implementation.

How long do employers have to respond to a trade union access request?

The statutory process generally requires a response within 15 working days of receiving an access request. If the request is not accepted in full, a 25-working-day negotiation period follows the employer’s response. The applicable timetable depends on the statutory rules and any permitted extensions.

Do trade union workplace access rules apply to small employers?

The CAC cannot impose a statutory access agreement where the employer has fewer than 21 workers under the applicable counting rules. This threshold does not create an exemption from all trade union law. Other obligations may still apply.

Disclaimer: This article is intended as general information only and does not constitute legal advice. The application of trade union recognition and workplace access rules, and related employer obligations under the Employment Rights Act 2025, will depend on the specific circumstances of each organisation. Bespoke legal advice should be obtained before acting.