In Six Weeks You Become Responsible For People You Don’t Employ

It’s a Tuesday in November.

A visitor to your building loses his temper at the reception desk and says something to the receptionist that he wouldn’t dream of saying to his own staff.

She’s upset, she reports it.

And then everyone discovers, in slow motion, that she doesn’t work for you, she works for the supplier who holds your front-of-house contract, at a desk you own, in a building you control, dealing with a visitor you invited, under a code of conduct that applies to your employees and not to her.

Six weeks from now that becomes your problem. Legally, I mean. It’s been your problem morally for about twenty years and most of us have quietly agreed not to look at it too closely.

We’ve been reading this Act wrong

The Employment Rights Act has been discussed in this sector for two years as a supplier cost, something that turns up in your provider’s April letter, gets argued about at the annual review, and either gets absorbed or gets passed on depending on how the negotiation goes.

That framing was always going to fail, and on 30 October it fails properly.

Because three of the provisions in this Act don’t land on your contractor at all, they land on you. They can’t be passed back, priced out or negotiated away, because they aren’t commercial terms they’re your own legal obligations, triggered by work done on your premises by people you don’t employ.

Most soft services specifications in circulation were written on an assumption so basic that nobody ever wrote it down: that the buyer’s exposure ends at the invoice.

That assumption is about to be wrong.

One: third-party harassment – 30th of October 2026.

From 30th of October, employers face new standalone liability where third parties harass their employees or workers and the employer has failed to take all reasonable steps to prevent it. A single incident is enough to trigger it. The separate duty around sexual harassment hardens at the same time, from taking “reasonable steps” to taking “all reasonable steps”.

Now ask the facilities question, who in your building spends the most time in front of third parties?

Reception – Security – Cleaning – Catering. – Post room. Every single one of them, in most organisations, employed by somebody else.

The exposure runs in both directions and both are awkward. Your contractor’s staff get abused by your visitors, your employees, or your other contractors on your site, under your control, in circumstances where your policies apply and your supplier has no practical authority to do anything about it. And your own employees are exposed to third parties whose presence on site is controlled by contractors working to a specification you wrote.

“All reasonable steps” will be measured against what a reasonable occupier could have done not what a cleaning contractor could have done. You control the access, the CCTV, the visitor process, the signage, the escalation route and the decision about whether that visitor is welcome back, your supplier controls none of it.

So here’s the question I’d put to every reader:

Does your soft services specification contain the word “harassment” anywhere? Does anyone’s?

In the specs I’ve reviewed this year, the answer is almost uniformly no. There’s plenty on response times and plenty on uniform standards, there is nothing on what happens when someone on your site is abused, who tells whom, or how you would ever demonstrate a year later, in front of someone who is not sympathetic that you took all reasonable steps.

You can’t evidence a step you never designed.

Two: your pay gap report is about to name your contractors

The second one is slower and, I suspect, more consequential.

Under the Act’s equality reporting package, employers with 250 or more employees will be required to name their outsourced service providers in their gender pay gap reports. Not include those workers in the calculation identify the providers. Alongside that come mandatory equality action plans: encouraged from April 2026, a legal obligation for larger employers from April 2027.

That’s a transparency mechanism, and its purpose isn’t subtle. It puts a public, board-level, annually repeated spotlight on precisely which parts of the workforce an organisation has chosen to place outside its own pay statistics. The Government has separately said it intends to stop outsourcing being used to avoid equal pay obligations, though nothing has been enacted on that yet. I wouldn’t bet against it.

Let me put the uncomfortable version of this argument, because it’s the one that will actually be made.

In a great many organisations, the lowest-paid part of the workforce in the building the part that is most often female, most often from a minority background, most often on the wage floor sits outside the gender pay gap report because of a procurement decision taken a decade ago by people who were not thinking about pay gaps at all.

You are about to publish that fact every year with your suppliers’ names attached to it.

Whatever you think of that as policy, it is going to generate questions from boards, from investors, and from journalists, and “it’s outsourced” is going to stop being an answer.

Three: the flexibility you’re about to lose – January 2027.

From January, where employees are dismissed in order to be replaced by non-employees; agency workers, contractors doing substantially the same duties, those dismissals will be automatically unfair, with uncapped liability. There are narrow carve-outs for genuine redundancy and severe financial distress. they are narrow.

That sits on top of the unfair dismissal qualifying period dropping from two years to six months, and the removal of the compensation cap entirely.

Read that as a buyer rather than as an HR director.

An enormous amount of what FM specifications quietly assume depends on a flexible labour model. Flex up for the event, flex down over Christmas. Agency cover for absence, seasonal variation. That lovely catch-all clause about the supplier managing resourcing efficiently, which has been doing an extraordinary amount of unexamined work in contracts for years.

That model is about to get harder to operate and considerably riskier to get wrong. Your supplier will not raise this with you at the price review, they will either price it in and you will experience it as an unexplained increase or they will quietly stop offering the flexibility and you will experience it as a service problem.

And this is all landing on a cost base that has already moved. The National Living Wage rose 4.1% to £12.71 in April. Private sector regular pay growth over the same period was 2.9% the lowest since 2020. The floor is now rising faster than the market above it, which means the gap between an operative and their supervisor is compressing towards nothing. That is a retention problem, and it doesn’t arrive in your supplier’s boardroom, it arrives on your site, at seven in the morning, when nobody turns up.

And for anyone on the public sector side: the two-tier code is back in October, with statutory footing this time. Where TUPE’d staff and newly hired contractor staff work side by side on the same contract, less favourable treatment is out, and contracting authorities must take all reasonable steps. It isn’t expected to apply retrospectively which means it bites at re-tender. For most authorities, that’s now.

You can’t outsource an obligation

That’s the whole thing, really. You can outsource the work, you have never been able to outsource the obligation, and for two decades the distinction has been comfortably academic. In six weeks it stops being academic.

Three things to do before 30th of  October, none of them require a budget.

Search your soft services specification for the word “harassment”. If it isn’t there, you’ve found the gap, fix it at the next variation rather than the next tender.

Establish, in writing, how an incident involving contractor staff on your site gets reported to you. Not to your supplier to you, with a timescale. If the answer is “it would come up at the monthly meeting”, that is not a reasonable step and it will not read as one.

Find out how many people work in your building who don’t appear in your gender pay gap report. Get the number now. Somebody is going to ask you for it, and the meeting where you’re asked is not the meeting in which you want to start counting.

---

Dates and provisions correct at 17 August 2026; implementation of this Act has moved more than once, so check the current position with Acas before acting. This is a piece about procurement and specification consequences, take your own employment law advice on the law itself.

EMC & Associates advises client-side organisations on facilities and catering contracts.