UK Sexual Harassment “All Reasonable Steps” Risk Assessment and Tribunal Evidence File
On 30 October 2026, Equality Act 2010 s. 40A rose from reasonable steps to all reasonable steps, backed by EHRC enforcement and a 25% tribunal uplift under s. 124A. Replace generic e-learning with a live role-specific risk register.
- Jurisdiction
- Great Britain · Equality Act 2010 ss. 40A, 109(4) & 124A (as amended by ERA 2025)
- Employer threshold
- All GB employers (1+ employee) · Proactive anticipatory duty
- Decision trigger
- Board compliance audit, off-site party/conference planning, EHRC inquiry, or tribunal defence
- Review cadence
- Reviewed on statutory regulations specifying "reasonable steps" under s. 40A or EHRC enforcement actions
Direct operational answer
Effective 30 October 2026, Section 40A(1) of the Equality Act 2010—amended by the Employment Rights Act 2025—requires UK employers to take all reasonable steps to prevent workplace sexual harassment, backed by Equality and Human Rights Commission enforcement and up to a 25% compensation uplift under Section 124A. Using the hr.cafe role-specific risk register, HR audits lone working, alcohol events, power imbalances, and rejected control options before complaints arise.
What Changed Between 26 October 2024 and 30 October 2026
Adding the single word "all" into Section 40A(1) of the Equality Act 2010 shifts the tribunal inquiry from what you did do to what you failed to consider. If one obvious, affordable control was skipped without a written reason, the statutory breach is made out.
Trace the two-stage legislative tightening across Great Britain. When the Worker Protection (Amendment of Equality Act 2010) Act 2023 first inserted Section 40A into the Equality Act 2010 on 26 October 2024, Parliament watered down the original Bill so employers needed only take "reasonable steps" to prevent sexual harassment of employees in the course of employment. Many employers updated one PDF policy, assigned a generic 25-minute e-learning module, and closed the project.
On 30 October 2026, the Employment Rights Act 2025 amended Section 40A(1) to require "all reasonable steps" to prevent sexual harassment. That change aligns the proactive preventive duty with the strict standard applied to vicarious-liability defences under Equality Act 2010 s. 109(4). Future secondary regulations will also specify mandatory baseline steps.
Look at how tribunals interpret the word "all" in established UK appellate authority. In Allay (UK) Ltd v Gehlen [2021] ICR 645, the Employment Appeal Tribunal rejected an employer's Section 109(4) "all reasonable steps" defence despite signed training logs. The training had gone stale. Bystanders failed to report remarks they witnessed, and management never refreshed the sessions. Similarly, in Canniffe v East Riding of Yorkshire Council [2000] IRLR 555, the EAT ruled tribunals must ask two sequential questions:
- What steps did the employer actually take to prevent harassment?
- Were there any further reasonable steps the employer could practically have taken? Even if those extra steps might not have guaranteed prevention, skipping them defeats the defence.
Counting the Financial Exposure: Uncapped Damages Plus the 25% Section 124A Uplift
A Section 40A breach does not apply a 25% surcharge only to a small injury-to-feelings award. Under Section 124A, the uplift multiplies across the entire discrimination compensation figure—including uncapped career-loss and psychiatric damages.
Read Equality Act 2010 s. 124A carefully before treating a harassment risk register as paperwork. Whenever an Employment Tribunal upholds a workplace sexual-harassment claim, Section 124A(2) requires the tribunal to check Section 40A(1) compliance. Under Section 124A(4), the tribunal may order an uplift of up to 25% on the total Section 124 compensation awarded.
Run the real arithmetic on a senior or mid-career departure in 2027. Remember that tribunal time limits also doubled from three months to six months on 1 October 2026:
- Suppose a £72,000 regional account manager resigns with psychiatric injury after an overnight Birmingham kick-off conference. A national sales director harassed her after the company ran an uncapped open bar until 02:00 and booked junior staff into an unmonitored annex.
- Base Discrimination Award (s. 124): Upper-middle/top Vento band injury to feelings (£34,000) + 14 months' net earnings and pension loss (£64,400) + 10% Acas Code uplift (£9,840) = £108,240.
- Section 124A Preventive-Duty Uplift (20%–25%): Because HR had zero pre-event risk assessment for alcohol-heavy overnight conferences, a 25% uplift adds £27,060. Total award exposure hits £135,300 before legal fees.
- Independent EHRC Enforcement: Even where zero employee files a tribunal claim, the Equality and Human Rights Commission can intervene directly under Equality Act 2006 ss. 20–24A. Whistleblowers or staff surveys exposing a missing risk assessment can trigger investigations, unlawful-act notices, and binding Section 23 action plans.
Anatomy of a Tribunal-Ready Harassment Risk Register
Paragraph 3.31 of the EHRC Technical Guidance states plainly that an employer is unlikely to comply with the preventive duty unless it carries out a sexual-harassment risk assessment. A generic health-and-safety template copied from fire-marshal checks will fail on sight.
In our people operations compliance audits, the biggest single gap between a cosmetic document and a real tribunal shield is the "Considered / Rejected Control Log." Under "all reasonable steps," claimant counsel will always invent three plausible extra measures with 20/20 hindsight ("Why didn't you ban alcohol completely? Why didn't you put body-worn cameras on every hotel cleaner?"). If your contemporaneous risk register shows you actively evaluated those exact options six months earlier, adopted targeted proportionate alternatives, and recorded objective operational or data-protection reasons why an extreme measure was unworkable, you neutralise hindsight cross-examination.
Map your workforce role by role—never as one undifferentiated "office"—across the seven risk multipliers flagged by Acas and the EHRC (and integrate third-party exposure using our 30 October 2026 third-party harassment protocol):
- Power Imbalances & Precarious Status: Graduate trainees, visa-sponsored workers on Skilled Worker CoS, zero-hours/casual staff, interns, or teams where one "rainmaker" partner controls promotions and bonuses.
- Lone, Night, or Isolated Working: Closing shifts, lone warehouse aisles, hotel housekeeping, home-care visits, or out-of-hours security.
- Alcohol, Socials & Overnight Travel: Christmas parties, industry trade shows, client hospitality dinners, and off-site residential away-days.
- Skewed Workforce Demographics: Male-dominated engineering/trading floors or isolated minority cohorts where sexualised "banter" goes unchallenged.
- Digital & Back-Channel Comms: Unmoderated WhatsApp shift groups, personal Instagram DMs between supervisors and 18-year-old casuals, and Slack private channels.
Equality Act s. 40A Role-Specific Sexual Harassment Risk Register
| Environment / Role Cohort | Specific Risk Multiplier | Active Preventive Controls Implemented | Further Step Considered & Documented Rationale if Rejected | Effectiveness Metric (Quarterly Audit) |
|---|---|---|---|---|
| Annual Sales Kick-Off & Client Socials | Alcohol + overnight hotel stay + senior/junior power gap | Cap complimentary drinks at 2 vouchers; provide non-alcoholic parity; designate 2 sober Executive Welfare Leads; end official bar tab at 22:30; pre-event conduct reminder from CEO. | Total alcohol ban considered: Rejected for commercial client dinners; mitigated instead by 2-drink cap, mandatory two-staff attendance, and pre-booked solo taxi accounts. | Post-event pulse check within 7 days + zero late-night incident reports. |
| Skilled-Worker Visa & Probationary Cohorts | Fear of sponsorship loss or probation failure deterring reporting | Named independent Board/HR whistleblowing route outside line chain; explicit onboarding statement that harassment reports never affect visa sponsorship or probation (ERA s. 43B). | External ombudsman helpline considered: Adopted via confidential third-party speak-up portal with named/anonymous two-way messaging. | Annual anonymous survey cut by visa/tenure cohort checking reporting confidence. |
| Retail / Hospitality Evening Shift (17–22 yrs) | Young casual staff + supervisor shift-allocation power + WhatsApp | Ban scheduling/shift swaps via personal WhatsApp or DMs (move 100% to audited rota app); require 2+ staff on close; bystander-intervention live workshops for shift leads. | Body-worn audio cameras on all staff: Rejected for restaurant floor under UK GDPR data-minimisation; fixed till/bar CCTV + wearable silent panic fobs deployed instead. | Rota audit for sudden hour cuts after complaints + 100% live shift-lead refresher every 12 months. |
| Remote / Hybrid 1:1 Line Management | Out-of-hours video calls & private chat boundary erosion | Core messaging hours window; multi-channel reporting link pinned in HRIS; skip-level check-ins every 6 months asking standard culture/safety question. | Automated AI scanning of all private Slack DMs: Rejected as disproportionate privacy intrusion; targeted preservation & forensic review on report adopted. | Skip-level completion rate >= 90% + trend comparison of informal vs. formal reports. |
Testing Whether Training Has Gone Stale: The Quarterly Audit Record
In Allay v Gehlen, the employer lost despite holding signed training attendance sheets because nobody checked whether behaviour actually changed. Pair live scenario training with a quarterly pulse and bystander log.
Replace passive tick-box slides with three active verification records so your tribunal bundle speaks for itself:
- Role-Tailored Bystander & Manager Drills (Refreshed Annually): Run 45-minute interactive sessions teaching line managers and senior peers how to interrupt subtle boundary testing in real time, how to handle an employee who says "I don't want to make a formal fuss, just keep him away from me," and why informal manager "off-the-record chats" create Section 40A exposure.
- Anonymous Prevalence vs. Formal Grievance Gap Check: Run a four-question anonymous staff survey every six months. If 0 formal grievances arrived at HR all year yet 14% of survey respondents in Logistics report witnessing unwanted sexualised comments in the past six months, you have live diagnostic proof that reporting barriers exist—and acting on that hotspot immediately proves your Section 40A system is alive!
- Post-Investigation Root-Cause Loop: After every formal or informal complaint (even if unsubstantiated on balance of probabilities), update the risk register within 14 days to record whether physical layout, rota rules, or supervision failed.
BOARD & TRIBUNAL EVIDENCE LOG — SECTION 40A PREVENTIVE DUTY QUARTERLY REVIEW
Quarter Reviewed: [Q4 2026 — Post-30 October "All Reasonable Steps" Standard]
Accountable Executive Sponsor: [Name & Title] | HR Lead: [Name] | Union / Staff Forum Consulted: [Date]
1. DIAGNOSTIC SIGNAL CHECK
- Formal & Informal Sexual Harassment Reports Logged This Quarter: [n = X]
- Anonymous Semi-Annual Staff Survey Signal (n = [X] / [Y] headcount, [Z]% response):
* Witnessed or experienced unwanted sexualised conduct in last 6 months: [X]%
* Know how to report & trust non-retaliation: [X]%
- Hotspot Identified: [e.g., Regional Field Sales overnight events — 3 survey comments flagged late bar culture]
2. ACTIVE INTERVENTIONS DEPLOYED THIS QUARTER
- Live Manager Bystander & Intake Refresher Completion: [98.4% — 62 of 63 managers; 1 on parental leave blocked until return]
- Third-Party MSA Conduct Clause Rollout: [100% of new Q4 contracts; top 25 legacy accounts amended]
- Hotspot Corrective Action: [Updated Travel & Events Policy effective 15 Nov — ended company-funded post-dinner tabs]
3. FURTHER STEPS EVALUATED & SIGN-OFF
- Step Evaluated: [e.g., External independent investigator panel for senior-exec complaints] -> [ADOPTED / RETAINED ON PANEL]
- Next Scheduled Register Review Date: [DD/MM/YYYY] (or immediately upon any incident or operational change).Governance Split Across the Board, Line Managers, and People Ops
Leaving Section 40A solely on an HR generalist's desk guarantees failure when a high-billing partner breaks the rules. Anchor accountability at board level.
Cascade scenario scripts through your manager support hub and verify all investigation records against our editorial standards for contemporaneous evidence.
Sign off the Section 40A risk register twice a year, enforce zero carve-outs for high-revenue executives, and strip discretionary bonus eligibility for proven harassment or retaliation.
Interrupt sexualised "banter" on the first remark without waiting for a complaint, escalate "please don't tell HR" disclosures immediately to the designated safeguarding lead, and model sober boundaries at work socials.
Maintain the role-by-role risk register and rejected-steps log, track stale-training expiry at 12 months, and cross-reference anonymous survey hotspots against formal grievance logs.
Primary statutes, regulations, and enforcement dockets
- Equality Act 2010 ss. 40A & 124A — Employer Preventive Duty & 25% Compensation Uplift (Legislation.gov.uk) — Codifies the anticipatory employer duty (strengthened to "all reasonable steps" from 30 October 2026) and links to the Section 124A tribunal uplift.
- Equality and Human Rights Commission (EHRC) — Sexual Harassment and Harassment at Work: Technical Guidance — Sets out statutory expectations on role-specific risk assessments, staff surveys, training refreshers, and EHRC enforcement powers.
- Acas — Steps for Employers to Prevent Sexual Harassment — Official GB guidance covering risk factors (power imbalances, lone working, alcohol, events, third parties), reporting routes, and policy standards.
- GOV.UK — Plan to Make Work Pay and Employment Rights Act: Timeline Update — Confirms 30 October 2026 commencement date for the "all reasonable steps" amendment under the Employment Rights Act 2025.
Practitioner questions on the edge cases
Can an employee bring a standalone Employment Tribunal claim solely for a breach of Section 40A if no harassment actually occurred?
No. An individual cannot bring a standalone tribunal claim solely under Section 40A without an underlying upheld sexual-harassment claim under the Equality Act 2010—if their harassment claim succeeds, the tribunal then assesses Section 40A and can add up to a 25% compensation uplift under Section 124A. However, the Equality and Human Rights Commission (EHRC) can investigate and enforce a Section 40A failure (such as having no risk assessment) at any time without waiting for an individual tribunal claim.
Does the 25% Section 124A uplift apply only to the injury-to-feelings element, or also to lost earnings?
Under Equality Act 2010 s. 124A(3)–(4), the uplift of up to 25% applies to the entire compensation awarded under Section 124 for the sexual harassment (and any other upheld harassment to which the tribunal extends the calculation under statutory rules)—meaning both the Vento injury-to-feelings award and uncapped past/future loss of earnings and pension loss are multiplied by the uplift percentage.
Do micro-businesses with under 15 UK employees still need a written sexual-harassment risk assessment?
Yes. Section 40A contains zero small-employer exemption. While "reasonableness" scales to your headcount, budget, and operating model (a 12-person design studio does not need an enterprise whistleblowing software licence), the EHRC explicitly advises every employer regardless of size to record a proportionate written risk assessment, designate an alternative reporting contact above or outside the founder/manager, and brief staff clearly.
What happens if an employee reports historic harassment informally and asks HR "not to take any action"?
Explain sensitively that while you will respect confidentiality to the maximum extent possible, your statutory duty under Section 40A to protect both them and other staff means HR cannot simply bury a serious ongoing safety risk. Log the report in your confidential risk review, evaluate proportionate protective steps, and proceed to formal investigation where an ongoing threat to colleagues exists, while protecting the reporter from any victimisation under Section 27 or whistleblowing detriment under ERA 1996 s. 47B.
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