UK Employment Law Coffee Break: ERA webinar series, updated EHRC guidance, and AI in the Employment Tribunal

Our ERA webinar series: The new rules on varying contractual terms and fire and re-hire

The next webinar in our Employment Rights Act (ERA) series is on Monday 23 November, "Playing with fire: The new rules on varying contractual terms and fire and re-hire".  Please join Lara Fatemi, Nick Haywood and Alex Rose to look at what the ERA changes mean for employers looking to change terms and conditions of employment or restructure their workforces. You can sign up for this, and other webinars in our ERA series, here.

If you missed our webinar on Monday discussing the new trade union rights, you can catch up here.

EHRC updates harassment guidance: what should employers do now?

The Equality and Human Rights Commission (EHRC) has updated its technical guidance and eight-step guide following changes to employers’ harassment duties that took effect on 30 October.

Employers must now take “all reasonable steps” to prevent sexual harassment. As well as action by the EHRC, failure to prove all reasonable steps were taken can result in an Employment Tribunal increasing sexual harassment compensation by up to 25% where an individual brings a successful claim.  

Employers may now also face tribunal claims where a staff member is harassed by third parties, such as customers, clients or contractors, unless they have taken all reasonable steps to prevent it. This new third-party protection extends beyond sexual harassment to other forms of unlawful harassment.

The updated guidance includes practical examples to help employers understand what is expected of them. It also places greater emphasis on workplace culture, the role of managers and senior leaders, and how harassment complaints should be handled.

What does “all reasonable steps” mean in practice?

The guidance confirms that “an employer will have taken all reasonable steps if there are no further steps that they could reasonably have been expected to take”. Having a policy and delivering training will not, on their own, be sufficient. Employers must consider what further reasonable steps are needed to reduce the risk of harassment. If an employer could reasonably do more but decides not to, it is likely to fall short of the preventative duty. A step may still be reasonable even if it would not have prevented a particular incident, for example, where it would reduce the risk of harassment more generally.

What is reasonable will depend on the employer’s circumstances, including its size and resources, working environment, sector and contact with third parties. This is an objective test, rather than a matter of what the employer itself considers reasonable. The guidance expressly states that “compliance with the preventative duty is not static”; employers must keep checking whether their approach is working and adjust their practices accordingly.

Risk assessments remain an important starting point, and the guidance confirms that an employer is unlikely to meet the preventative duty without one. Employers should assess third-party risks as well as risks within their own workforce, consider whether particular groups face greater or overlapping risks, and consult trade unions or employee representatives about the risks and how to address them. The assessment should look beyond the usual workplace, including risks arising from work-related social events, conferences, travel, homeworking and social media contact between workers. Power imbalances, insecure working arrangements, lone working and alcohol are among the factors highlighted in the guidance.

Employers should turn their assessment into an action plan setting out the preventative steps they will take and how these will be monitored, with clear ownership and a review timetable. The guidance also suggests considering a designated lead to take responsibility for implementation and compliance.

Protecting staff from third-party harassment

On the new statutory protection against third-party harassment, the updated guidance recognises that employers cannot control a customer’s behaviour in the same way as a colleague’s. Nor are they expected to prevent every possible incident or plan for situations that are wholly unexpected or extremely unlikely. The requirement is to take all steps that are reasonable in their particular circumstances.

Practical measures suggested include notices explaining that harassment of staff will not be tolerated, reducing lone working, improving security, and giving staff a safe way to call for help or leave an abusive situation. Training should help staff recognise warning signs and respond safely, and equip managers to intervene and support those affected. The guidance acknowledges that asking a third party to leave may be appropriate, but will not always be safe or possible. Employers should consider other ways to protect staff in those circumstances. Recording incidents and reviewing them for patterns can also help identify where further action is needed.

Where appropriate, employers should review third-party contracts to clarify who will investigate harassment allegations, require cooperation with investigations and set out what action may follow if a complaint is upheld. The guidance also suggests “warranties that appropriate anti-harassment training has taken place” and that policies are shared with the relevant organisation and individuals. However, contractual assurances are not a substitute for action: employers may need to investigate themselves or request that an individual is removed from the contract.

Leadership, policies and training 

The updated guidance places greater emphasis on leaders setting the tone and managers challenging inappropriate behaviour. Senior leaders should be kept informed about emerging trends and take responsibility for ensuring that action follows. Training should help managers model appropriate behaviour and respond to concerns, as well as cover bystander intervention and dealing with third parties. Employers need to respond where there are signs that existing arrangements are not working.

Managers should not wait for a formal grievance before responding to warning signs. Informal reports, changes in behaviour, sickness absence and avoidance of a particular colleague may all warrant further enquiries.

The guidance also cautions against treating an individual’s request to “do nothing” as marking the end of the employer’s responsibilities. Many HR teams will be familiar with colleagues who "just want to let them know about an issue" but don't want any formal action commenced. Employers should sensitively assess the complainant’s wishes alongside the risks to them and others, consider appropriate support and keep the situation under review. Where further action is necessary despite the complainant’s wishes, the reasons should be explained and appropriate safeguards put in place.

Employers should also review how they communicate complaint outcomes. Wherever appropriate and possible, a complainant should be told what action has followed an upheld complaint, including measures to prevent recurrence. Data protection should not be treated as an automatic barrier: employers should assess the lawful basis for, and proportionality of, disclosure, and ensure their policies and privacy notices support that approach.

Overlap with whistleblowing allegations

With sexual harassment now expressly listed in legislation as a protected disclosure, the updated guidance expressly acknowledges the overlap between allegations of harassment and an employer’s whistleblowing policy. A new section on whistleblowing states that policies should explain the available routes for an individual making an allegation and how to decide which to use. In particular, workers should not be disadvantaged, or their complaint delayed, because they have used the wrong procedure. Where a complaint is handled under a whistleblowing policy, parts of the anti-harassment procedure may still be relevant, for example, provisions on supporting the complainant.

The guidance stresses that not every harassment complaint will amount to whistleblowing: the relevant statutory requirements, including a reasonable belief that the disclosure is in the public interest, must be met. However, protection does not depend on expressly choosing the whistleblowing procedure. The guidance notes that “a worker does not have to specify that they believe their concern amounts to whistleblowing for whistleblowing law to apply”.

What does this mean for employers?

Employers should check their current approach against the revised guidance. This includes reviewing their risk assessments and action plans, third-party contracts and reporting procedures, and checking that training is understood and put into practice. Employers should also keep careful records showing what they have done and how they have assessed whether it is working. These might include risk assessments, consultation and training records, staff feedback, and formal and informal complaints and their outcomes, with appropriate data protection safeguards. Employers should not delay taking action where an incident or concern reveals a gap in their procedures.

A low number of complaints is not necessarily evidence of a healthy culture. The guidance warns employers not to assume that complaint numbers are “an accurate reflection of the level of harassment happening in the workplace”. Staff surveys and other feedback can help reveal under-reporting and whether workers feel safe speaking up. Policies and preventative measures should be reviewed annually, with earlier action where incidents, feedback or changes in working practices reveal a need. Senior leaders should own the response and ensure that recommendations are implemented.

Employers should also note that statutory regulations are to be made under the ERA specifying reasonable steps to prevent sexual harassment; these are expected to come into force in 2027-2028 following consultation. 

We are working closely with our health and safety team to assist clients with their risk assessments and the actions arising from them.

Please speak to your usual Osborne Clarke contact about how we can support you with reviewing your policies, third-party arrangements and training in light of the new duties.

The rise of AI in the Employment Tribunal: what UK employers need to know

The use of artificial intelligence (AI) by litigants in person is no longer an emerging trend in the Employment Tribunal but a common occurrence. 

Over the past six months, there has been a marked increase in judicial intervention on this issue. While AI is not prohibited, the Employment Tribunal and Employment Appeal Tribunal (EAT) expect those using it to act responsibly. 

The current position

There is, as yet, no specific legislation in the UK governing the use of AI in legal proceedings. However, a body of guidance is developing, which is currently directed at judicial office holders and legal professionals. 

The overarching themes running through the guidance are consistent. They confirm that all parties, including litigants in person, bear personal responsibility for AI-generated content submitted to the Employment Tribunal. While the use of AI is not prohibited in principle, it must be deployed carefully to ensure accuracy. It is noted in guidance that litigants in person face particular risks, given their limited ability to verify AI-generated legal information. However, this does not detract from their personal responsibility.

In June 2026, the presidents of the Employment Tribunals in England, Wales and Scotland published guidance on applications for interim relief, prompted by a significant increase in both the number of such applications and the volume of documentation accompanying them. Although this guidance is confined to interim relief applications, it is illuminating as to the broader challenges the Employment Tribunal and EAT are facing. We consider it likely that similar guidance addressing other aspects of proceedings will follow in due course.

What practitioners are seeing

ET1 claims are becoming significantly longer, as are other documents such as schedules of loss, lists of issues and witness statements. Correspondence to respondents and the Employment Tribunal has increased in volume. It is common for litigants in person to be unable to explain their own case at preliminary hearings. In some instances, this may be because their claims were written by AI rather than in their own words. This sometimes leads to the need for further preliminary hearings, adding to the time and cost involved in  defending claims.

References to claimants' use of AI are appearing with increasing frequency in judgments. A recent EAT decision which we covered in detail here provides a useful example. The EAT confirmed that all litigants, whether represented or not, must take personal responsibility to ensure that documents comply with applicable procedural rules, have been checked as thoroughly as reasonably possible for accuracy, and contain only relevant points. The EAT also held that the burden of checking a document cannot be shifted to the other side. 

How the Employment Tribunal is responding

A range of approaches is emerging, some well established and others more recent.

Setting strict page limits for documents such as witness statements and bundles has become more common, as has placing restrictions on communication where a party has engaged in excessive correspondence. Judges are also issuing more detailed case management orders than might previously have been the norm, drafted apparently to pre-empt the sorts of questions or queries that can arise when litigants in person copy orders into AI tools.

Most notably, some case management orders now include specific requirements on the use of AI. These have included requiring parties to state at the head of the document where AI has been used in its preparation, confirm that the document has been checked for accuracy and relevance, and confirm that it is proportionate in length and not repetitive. 

Some orders have gone further, providing that a judge may find that a party's conduct in presenting an AI-generated document in breach of the requirements amounts to unreasonable conduct, with the consequence that the party may no longer be permitted to pursue their claim, or the other party may be permitted to seek its costs. Costs orders in the Employment Tribunal remain rare, although there are anecdotal indications that applications for costs are at least increasing. The inclusion of such language in case management orders is noteworthy.

Looking ahead

It seems inevitable that further guidance and intervention from the Employment Tribunal will follow in the months and years ahead, particularly given that the use of AI by litigants in person is a contributing factor to the increasing backlog of claims. 

The current messaging is consistent. AI can be a legitimate tool, and it can enable access to justice in a way which was not previously obtainable. However, it must be used responsibly by all parties. 

Carla O'Neill, an Associate Director at Osborne Clarke, authored this Insight on AI in tribunals.

If you would like to discuss any of the issues raised in this article or would like to be kept updated on further developments in this area, please do not hesitate to get in touch with your usual Osborne Clarke contact.