As we have seen, some of the reforms introduced by the Employment Rights Act 2025 are extremely complex. Others are a bit more straightforward. Here’s a simple one:

20 Employers to take all reasonable steps to prevent sexual harassment

In section 40A of the Equality Act 2010 (employer duty to prevent sexual harassment of employees), in subsection (1), before “reasonable steps” insert “all”.

This change came into force on 30th October. What it means, just in case it isn’t obvious, is that the duty to take ‘reasonable steps’ to prevent sexual harassment, found in section 40A of the Equality Act 2010, is amended so that employers now have to take ‘all’ reasonable steps

Are you ready for this momentous change? Does it, in fact, make any difference at all?

I think not.

When the duty to prevent sexual harassment was being introduced in the Worker Protection (Amendment of Equality Act 2010) Bill 2023 it originally required employers to take ‘all reasonable steps’ to prevent sexual harassment.  It also extended an employer’s liability for harassment to cover the acts of thirds parties. It was a private members bill, albeit one supported by the Government, and had passed through the House of Commons without too much controversy and with limited debate. It was only when the Bill reached the House of Lords that anybody seemed to notice how significant it was and a number of Conservative Peers put down so many amendments that it became clear that it would not have time to pass.

So a deal was done. Employer liability for third-party harassment was dropped, leaving only the preventative duty in relation to sexual harassment (including third-party sexual harassment).

Part of the deal was to accept an amendment from Conservative peer Baroness Noakes removing the word ‘all’ from the duty to take ‘all reasonable steps’. Here is her explanation given in the House of Lords Committee stage:

“My reason for taking out the “all”, which is what my amendment does, in the new duty to prevent sexual harassment, which all parties around the House believe is an important part of this legislation, is that it now applies to third parties for the first time for some considerable time. The kinds of steps that you can take for employees are many and various. You have handbooks, training, town halls and all kinds of ordinary management mechanisms to allow you to ensure that you take reasonable steps.

When we come to third parties, the number of third parties is boundless. They are not just customers; you do not have to have a contractual relationship with them; they could even be passers-by. There is no bound to the number of third parties who could be brought within the scope of the new duty on employers. For that reason, “all reasonable steps” seems to imply an almost infinite number of steps that employers could take. We have to think about the impact on employers and, in particular, on small businesses which struggle to cope with things such as that. I submit that where other duties are placed on corporate bodies to do things, they are normally accompanied by a simple reasonableness test, not one embellished with something such as “all”.” (14 July Col. 2036)

For what it’s worth I think the idea that having to take all reasonable steps to prevent harassment from third parties ‘implies an almost infinite number of steps’ is nonsense. But there was no further debate on the issue because a deal had been reached, the amendment was unopposed and the Bill passed. So no-one examined whether there really was a significant difference between a duty to take reasonable steps and a duty to take ‘all’ reasonable steps. Now that the Employment Rights Act has put the word ‘all’ back in we should perhaps think about it.

If my house insurance policy requires me to take reasonable steps to secure my property when I’m away, I think I will have breached that requirement if I leave my back door open and get burgled. I don’t think I can point to several reasonable steps that I had, in fact, taken  – like locking the front door and perhaps a window or two –  and then argue that the policy did not require me to take ‘all’ reasonable steps. The common-sense meaning of a duty to take reasonable steps is that it is a duty to take such steps as it is reasonable to expect someone to take. You might reasonably have expected me to lock my back door and, since I didn’t, I have failed to take reasonable steps to prevent a burglary. Just as a matter of ordinary English usage I don’t think putting the word “all” before ‘reasonable steps’ adds anything.

It is also worth looking at how the phrase ‘all reasonable steps’ has been interpreted in the context in which it already appears in the Equality Act 2010. It crops up when it comes to the defence against a claim for discrimination carried out by an employee or agent for whose actions the employer is deemed to be liable.

Section 109 of the 2010 Act says that anything done by an employee in the course of their employment is treated as being done by the employer, whether or not it is done with the employer’s knowledge or approval. It is, however, a defence for the employer to show that it ‘took all reasonable steps to prevent’ what the employee has done.

This provision was not new in the Equality Act, but the wording was. In the Sex Discrimination Act 1975 (S.41) we find the same liability for acts done by employees with the employer having a defence if it took ‘such steps as were reasonably practicable’ to prevent those acts. We see the same test in the Race Relations Act 1976 (S.32), The Disability Discrimination Act 1995 (S.58), the 2003 Sexual Orientation Regulations (R.22), the 2003 Religion and Belief Regulations (R.22) and the 2006 Age Regulations (R.25).

The 2010 Act replaced the words ‘such steps as were reasonably practicable’ with the phrase ‘all reasonable steps’. This was not intended to involve any change of meaning.  – see Allay (UK) Ltd v Gehlen. EAT 2022. Unless you were around at the time you would never believe this, but one of the aims of the Equality Act was to put discrimination law into plain English – it was intended to be more easily understandable than the previous legislation.

I know, right?

Anyway, there is surprisingly little case law on the scope of the defence, but the cases we do have do not draw any distinction between the old and new wording. The duty to take ‘all reasonable steps’ is no different from the duty to take ‘such steps as were reasonably practicable’. The use of the word ‘all’ does not imply some infinite number of steps that need to be considered.

Probably the most quoted case describing the reasonable steps defence is Canniffe v East Riding of Yorkshire Council (EAT, 2000) a case involving an employee who suffered a serious sexual assault from a colleague. In considering whether the employer had taken such steps as were reasonably practicable to prevent such conduct the Tribunal held that nothing the employer could reasonably have been expected to do would have deterred or prevented it. It concluded that the employer was not liable.

The EAT said that was the wrong approach. The Tribunal should first of all consider what steps the employer actually took to prevent the employee from doing the acts complained of and then ask if there were any further steps they could reasonably have taken but which they failed to take. The fact that those steps would not have actually prevented the discrimination or harassment from happening did not get the employer off the hook.

The new technical guidance that has been issued by the Equality Commission clearly draws on this case when it says:

If there are other reasonable steps that an employer could have taken, but it decides not to, then it will likely fail to comply with the preventative duty. (para 3.36)

But I think the way the Equality Commission has expressed the principle – talking about steps an employer ‘could’ have taken rather than ‘should’ have taken – rather overstates the case.

It is worth taking a closer look at the Canniffe decision. In finding that the employer had met the reasonable steps defence, the only step the tribunal really had in mind was that the employer had adopted a policy on harassment and drawn that to the attention of employees. The EAT said that in cases where there was no knowledge on the part of the employer that one of their employees might have a propensity to commit harassment, then that might have been enough to establish the defence. Where the employer was aware of a distinct risk of harassment, however, then the employer might well be expected to do more – although the EAT didn’t make any specific suggestions. It seems difficult to reconcile this rather minimal approach with the idea that an employer might fail in establishing the defence simply because there was something else they ‘could’ have done but didn’t.

The real point that was being made in Canniffe is that the fact that other steps that have been suggested would would not have prevented the harassment is not determinative. A step might be a reasonable step even if the harassment would have happened anyway. After all, a claim is only going to be brought when harassment has actually happened. So any steps that the employer has taken have necessarily been unsuccessful. In making that point I don’t think the EAT was referring to other steps that the employer ‘could’ have taken with the intention of requiring an employer to think of everything that could possibly be done. Some steps might be reasonable in themselves, but completely unnecessary given the other things that the employer is doing.

In the 2003 Court of Appeal decision in Croft v Royal Mail Group, however, it was held that in considering whether a step was reasonably practicable it was permissible to take into account the extent to which it would have been likely to make a difference. The employer was entitled to ‘consider whether the time effort and expense of the suggested measures are disproportionate to the result likely to be achieved’ (per Pill LJ, para 61).

In practice, while Canniffe is still the test that is applied, it is applied with a common sense approach as suggested in Croft. Most recently in Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust (EAT, 2025) the EAT held that an employer had met the all reasonable steps defence by doing four things:

• Providing mandatory equality and diversity training (it helped that the training had taken place just days before the incident of harassment in question)

• Ensuring that the subject of ‘acceptable behaviour at work’ was dealt with in the employee’s induction

• Including an employee’s compliance with the employer’s values in annual performance assessments

• The display of those values on posters in areas where the employee worked

These steps do not seem onerous to me and I can certainly think of other things that the employer ‘could’ have done. Nevertheless, the EAT was satisfied that the employer had taken ‘all reasonable steps’ to prevent the harassment.

My view is that if an employer is currently taking reasonable steps to prevent sexual harassment, it does not suddenly need to think of even more steps to take just because the word ‘all’ has been added. It should already be taking such steps as it is reasonable to expect it to take – and that is all that is required.

As it happens we are in practice unlikely to see very many cases considering this test in the context of the preventative duty. Much more important is how tribunals will approach the concept of all reasonable steps when looking at third-party harassment –  which was dropped from the 2023 Private Members’ Bill, but which has now reappeared as a result of the Employment Rights Act. That’s an issue I will look at it in my next post.