Looking Forward to October 2026: Next Phase of Changes under the Employment Rights Act 2025

Currently, employers are under a duty to take reasonable steps to prevent sexual harassment of employees and workers in the course of their employment. From October 2026 this will be increased to a requirement to take “all reasonable steps”.

Employers will need to take all steps that it is reasonable for them to take in the circumstances, and what this constitutes will depend on the specific circumstances of the employer, such as their size, sector and other relevant factors. Future regulations may specify what steps an employer must take, but unhelpfully for employers these are not expected until well after the new laws come into force. Existing guidance from the Equality and Human Rights Commission (‘EHRC’), however, gives examples of what steps are likely to be required based on the current duty (such as risk assessments, action plans, policies, reporting and complaints procedures and training).

By way of a reminder – failure to comply does not lead to a standalone claim, but if an individual brings a claim against their employer for sexual harassment then it can lead to a 25% uplift in compensation awarded by a tribunal. The EHRC could also take enforcement action against an employer.

Key actions for employers: To prepare, employers should undertake or update (as appropriate) their risk assessments and action plans to ensure they are taking all reasonable steps to prevent sexual harassment before the law comes into force. Employers will need to ensure all reasonable steps are taken (which may include updating anti-harassment policies and complaints-handling procedures, training for managers and employees on the enhanced duty and more). Compliance should be reviewed on an ongoing basis.

Read our recent article for more information and visit our Prevention of Workplace Harassment products and services page for how Littler can help.

From October 2026, employers will be liable where a third party harasses an employee or worker in the course of their employment where they have failed to take all reasonable steps to prevent this. This is a new standalone claim and includes all types of harassment by third parties (not just sexual harassment). Liability can arise for a single act of third party harassment.

This is a significant new potential liability for employers, who often have no relationship or control of the third parties with whom their staff may come into contact. The Government acknowledges that the steps employers can take in respect of third parties are more limited than those they can take in relation to their own employees.

Key actions for employers: Risk assessments, action plans, training, reporting procedures and anti-harassment policies should all be updated to address the prevention of harassment by third parties. Preventative steps may include contractual terms and communications with clients, customers, suppliers and consultants to clarify expectations and standards of behaviour when dealing with their workforce.

Read our recent article for more information and visit our Prevention of Workplace Harassment products and services page for how Littler can help.

The Government has indicated that it plans to introduce electronic and workplace balloting for Statutory Trade Union Ballots in August 2026 (such as ballots for industrial action – which are currently held by post). A draft code of practice was consulted upon earlier this year, but the final order is awaited. This is more likely to affect employers who currently recognise a union.

However, beyond this, more significant trade union related measures are coming in October 2026 which could affect employers regardless of whether or not they currently engage with unions:

• Obligation on employers to inform workers of their right to join a trade union – A written statement informing workers of their right to join a union must be provided when the worker receives their section 1 statement of terms and conditions of employment, and at other prescribed times. Further detail is awaited, which will address the form and content of the statement, how it should be delivered and when it should be reissued.
• A new broad right for trade unions to request access to workplaces – The new statutory right will allow trade unions to request access to meet, support, represent, recruit or organise workers and to facilitate collective bargaining. “Access” includes both physical entry to the workplace and communication with workers by any means, including through digital channels. There will be a structured process for access requests and agreements with set timeframes for each stage. Significant fines (up to £500,000 for repeated breaches) can be issued by the CAC for non-compliance. Although the final code of practice is awaited following a recent consultation, it seems there will be only limited exceptions to this new right, such as for micro-employers who have less than 21 employees. See our recent article here.
• A new package of rights and protections – The trade union reforms also include new rights of access to facilities, enhanced time off rights for trade union and learning representatives, and new paid time off and access to facilities for trade union equality representatives. The ERA 2025 will also enhance protections for workers against detriment for taking protected industrial action and strengthen the unfair practices regime in the recognition and derecognition process.

These are significant changes, which may lead to an increase in workers’ awareness of trade unions and to an increase in the level of union membership. We may also see more pro-active steps being taken by trade unions to enter sectors where they have not traditionally had a presence. Employers who may not have previously had to engage with unions may have to plan for the fact that they may start doing so.

Key actions for employers: Employers should start preparing now by considering their overall industrial relations strategy and employee engagement, identifying how physical and digital access could be facilitated in practice and identifying key stakeholders who will need to understand the new requirements in order to respond swiftly in the event of a new access request.

Time limits for bringing most Employment Tribunal claims will increase from three to six months. The Government has indicated that this reform will take effect no earlier than October 2026. 

Key actions for employers: Extended tribunal time limits should be considered when handling employee relations and dispute resolution strategies.

Employers will be required to consult with either recognised trade union or workers’ representatives or (where there are no representatives) workers directly affected by tipping policies before preparing a first draft policy and when reviewing such policy every three years. Employers will also be required to make an anonymised summary of the views expressed in the consultation available to all workers where it applies.

Key actions for employers: Affected employers should review and amend their processes.

The Government plans to reinstate and strengthen the two-tier workforce code to ensure that where public services are outsourced, direct hires of the contractor are not treated less favourably than transferring public sector workers (and vice versa). The Government will do this through regulations and a statutory code of practice.  

Key actions for employers: Employers who undertake work outsourced from the public sector should review their contracts and update these with any prescribed provisions (once known via regulations) and ensure compliance with the two tier-code.