The impact on sectors such as hospitality, retail and transport is likely to be significant, and employers will be expected to take a proactive approach. However, the October 2026 reforms are not entirely new…
The early 2010s – the ‘three-strikes’ approach
The previous Labour Government introduced the Equality Act 2010 which included mechanisms to help prevent third-party harassment.
The provisions contained a three-strikes approach when it came to liability for harassment committed by third parties. Under the regime, an employer would generally only become liable where it knew that an employee had already been subjected to two previous incidents of third-party harassment and failed to take reasonable steps before a subsequent incident occurred.
This approach sought to address situations where employees were repeatedly exposed to abusive or degrading conduct from customers, clients, service users, or any member of the public. Employers needed to intervene where patterns of harassment were known to exist. The hospitality industry was a particular focal point that this provision attempted to address.
Three strikes, many issues…
The three-strikes approach was heavily criticised for not getting to the root of the issue and critics said that it failed to encourage employers to take workplace harassment more seriously. It created uncertainty as to what counted as a previous incident, how knowledge was established, and what actions employers were expected to take.
There were several issues with the approach:
- An unrealistic framework
- A key criticism came from the requirement that harassment must have occurred on at least two previous occasions before liability arose, saying that this ultimately undermined the preventative purpose of the law.
- It was also difficult to show liability because many incidents were never formally reported, they occurred in informal environments or were dismissed as isolated incidents. This meant that employers did not always have the necessary knowledge to take action.
- Focus on liability rather than prevention
- Employers often focused on defences of future litigation rather than preventing the harassment in the first place.
- Although employers often introduced policies, training manuals and reporting procedures, these measures were often far too generic and failed to reflect the specific risks within their own workplaces.
- Relying on individual complaints
- The effectiveness of the framework depended on employees raising grievances and bringing Employment Tribunal claims but, in reality, many employees were reluctant to report harassment at all.
- Employees often feared retaliation after reporting harassment including losing shifts, reputational damage, and being labelled as difficult despite the protection against victimisation contained in the legislation.
- Limits on employer control over third parties
- Some employers criticised the framework arguing they could not realistically control the conduct of third parties.
Ultimately the three-strikes approach was repealed in 2013 under the Coalition Government for being burdensome, unclear and for placing an unfair obligation on employers for conduct they could not always control.
Strengthening of the preventative duty – October 2026
The 2026 reforms seek to solve the weaknesses of the previous legislation by removing the three-strikes approach, instead requiring employers to take proactive, preventative measures from the outset.
In practice, this is likely to require organisations to assess whether particular roles involve heightened harassment risks, train managers to intervene appropriately, establish procedures for dealing with abusive customers, and demonstrate that preventative measures are actively implemented.
Lessons to learn from the three-strikes approach
Without careful drafting, the upcoming changes risk becoming a repeat of the previously repealed reforms.
Ultimately, significant organisational change is needed to help solve the issues that the framework has been put in place to prevent.
The following are possible lessons to be learned:
- Prevention must be operational
- There needs to be a move away from generic, box-ticking policies and a closer examination of the actual circumstances in which harassment risks arise.
- Hospitality and customer-facing sectors should look at alcohol-heavy environments, lone working, late-night shifts, remote locations, and power imbalances between employees and clients.
- Managers need to act competently
- Under the previous framework, management inaction was a significant barrier to real change.
- Employers need to empower managers to deal effectively with abusive customers, manage difficult client relationships where necessary and provide appropriate support to employees.
- Visible leadership and genuine support will give employees confidence to report concerns, knowing harassment will be dealt with in an appropriate manner.
- Fostering a reporting culture
- Organisational environments must be safe for employees to raise concerns.
- Trust, consistent enforcement, protection against retaliation and visible accountability are all hallmarks of a compliant organisation which treats harassment seriously.
Meaningful change requires employer buy-in
The upcoming reforms represent a significant development to third-party harassment laws. They acknowledge that there remains an issue of harassment by third parties even over a decade after the original framework was introduced.
The new framework provides a further opportunity to address the problems associated with third-party harassment. Employers will need to ensure that they take this responsibility seriously and focus on operational as well as cultural change. Commercially, they also need to be alert to the significant legal risk that will accompany the introduction of third-party harassment legislation.
If the new legal provisions successfully achieve their objective this time, they may bring forward a meaningful shift in attitudes in hospitality, retail, transport and other customer-facing sectors away from seeing abusive customers as part of the day job, towards recognising prevention as a key organisational duty of every business. Although certain sectors may feel the effects more acutely, employers across all industries should review their policies, training and reporting procedures to ensure they are prepared for the new regime.
How TWM can help
At TWM, our Employment Law team advises employers on workplace policies, compliance with equality legislation and managing the risks associated with harassment and discrimination.
If you would like advice on preparing for these changes or strengthening your existing approach to preventing harassment in the workplace, please contact our Employment Law team, who will be happy to help.