From October 2026, significant changes to employment law will come into force that will have far-reaching implications for the care sector. The introduction of third-party harassment provisions under the ERA will create new obligations for employers to protect their staff from harassment by individuals who are not employed by the organisation. For care providers, this presents unique challenges that require careful planning, robust policies and a sensitive approach to balancing the rights and needs of both staff and service users.
Understanding the new provisions
Third-party harassment provisions will make employers liable for harassment of their employees by third parties where the employer has failed to take all reasonable steps to prevent such harassment. This represents a significant shift from the current position, where employers have generally not been held directly responsible for the conduct of people outside their workforce.
For care providers, the relevant third parties are numerous. They include the very people at the heart of care: service users. They also include family members, friends and other visitors to care settings. Contractors, agency workers, delivery personnel and professionals from other organisations who attend care premises will also fall within scope.
The types of conduct that may constitute harassment are equally broad. Harassment occurs when someone engages in unwanted conduct related to a protected characteristic that has the purpose or effect of violating the dignity of the worker, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Protected characteristics include age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.
Particular challenges for care providers
Unlike a retail environment where a difficult customer can simply be asked to leave and not return, care providers have ongoing duties to the people they support. Service users may have contractual rights to receive care and, in many cases, they have nowhere else to go. Removing or restricting services because of behaviour that amounts to harassment of staff raises profound ethical, legal and practical questions.
Some service users may exhibit challenging behaviour as a direct consequence of their conditions. Dementia, learning disabilities, brain injuries and mental health conditions can all affect how individuals communicate and behave. This does not mean that staff should simply accept being subjected to harassment, but it does mean that care providers must think carefully about how they respond and what reasonable steps look like in these contexts.
The involvement of family members adds further complexity. Relatives may be stressed, anxious or grieving and their conduct may occasionally cross the line into behaviour that staff find distressing or offensive. Yet these same family members are often essential to the wellbeing of service users and damaging those relationships can have serious consequences for the quality of care.
Policies and staff training
Despite these difficulties, care providers must take proactive steps to protect their staff. Clear policies on acceptable behaviour should be developed and communicated to all third parties who come into contact with staff. This includes setting out what conduct is unacceptable and what the consequences may be if concerns arise.
Staff training is equally important. Employees should understand what harassment is, know how to recognise it and feel confident in reporting concerns. They should also receive training on de-escalation techniques and understand how to respond safely when difficult situations arise. Crucially, staff must know that their employer takes these matters seriously and that their complaints will be dealt with properly.
Supervision and support structures should be reviewed to ensure that staff have regular opportunities to raise concerns and that managers are equipped to respond appropriately. Record-keeping is also essential: thorough documentation of incidents, responses and outcomes will be important for managing ongoing situations and demonstrating compliance with the new legal requirements.
Balancing staff protection with service user rights
Perhaps the most delicate aspect of preparing for these changes is working out how to balance the duty to protect staff with the duty to provide care to service users. This is particularly acute where complaints are made against service users themselves or people closely connected to them.
Care providers will need to develop clear frameworks for risk assessment that consider the nature and severity of the conduct, whether it is linked to the service user’s condition or circumstances, what measures might reduce the risk of recurrence and what impact any proposed response might have on the service user’s care and wellbeing.
In some cases, it may be possible to adjust how care is delivered to reduce contact between the staff member and the individual causing concern. In others, additional training or support for staff may be the appropriate response. Where behaviour is serious and persistent, and where the individual concerned has capacity to understand and modify their conduct, it may ultimately be necessary to consider whether the care provider can continue to offer services. These decisions should never be taken lightly and should involve appropriate consultation and review.
Local authority funding and stakeholder considerations
Many care services are funded wholly or partly by local authorities and this introduces additional considerations. Where concerns arise about the behaviour of a service user or their family, the local authority may need to be involved in discussions about how to proceed. Care providers should not assume that they can unilaterally withdraw services funded under a contract with a public body without proper process.
Early engagement with commissioners and social workers is advisable when significant issues arise. Local authorities have their own duties towards vulnerable adults and may be able to offer support or facilitate solutions that the care provider could not achieve alone. At the same time, care providers should be clear with commissioners about the pressures their staff face and the steps being taken to comply with employment law.
Other stakeholders may also need to be considered. Integrated care systems, safeguarding teams, advocacy services and regulatory bodies may all have an interest in how a situation is managed. Care providers should ensure that their policies and procedures reflect this wider context.
Care Quality Commission (CQC) and regulatory implications
CQC expects providers to ensure the safety and wellbeing of both service users and staff. A failure to address harassment of staff could raise concerns under several of the key lines of enquiry that inspectors use to assess services, particularly those relating to safety and leadership.
Providers should be able to demonstrate that they have clear policies in place, that staff are trained and supported and that concerns are dealt with appropriately. Where incidents occur, CQC will expect to see evidence of proper investigation and of learning being applied to reduce the risk of recurrence.
Conversely, any response to third-party harassment that results in inappropriate treatment of service users could also attract regulatory scrutiny. Providers must therefore ensure that their approach is proportionate, well documented and defensible.
Planning for October 2026
Care providers should begin preparing now. Policies should be reviewed and updated to address third-party harassment explicitly. Training programmes should be developed or enhanced. Risk assessment frameworks should be put in place and managers should be briefed on how to handle the difficult situations that may arise.
Engaging with staff at all levels is important. Those working on the front line will have valuable insights into the risks they face and the practicalities of different responses. Involving them in developing policies and procedures will help to ensure that these are realistic and effective.
Finally, care providers should not approach this challenge in isolation. Sector bodies, legal advisers and peer networks can all offer support and share learning. The changes coming in October 2026 are significant but, with proper preparation, care providers can protect their staff whilst continuing to deliver high-quality, compassionate care.
How will your organisation remain compliant under the new provisions? Visit the CMM website and comment on this column or join the conversation to share your thoughts.
Stephenie Malone is Legal Director – Healthcare at HCR Law.
Email: [email protected] LinkedIn: @HCR-Law