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Strengthening protection against workplace sexual harassment has been a longstanding focus on the UK’s political agenda.
Action was taken by the former government to introduce a new preventative duty on employers in respect of sexual harassment which came into effect on 26 October 2024 (see our blog here). But the current government is now seeking to sharpen the teeth of existing legislation. It plans not only to change the new duty but also the UK’s whistleblowing laws, a framework which has been largely untouched since its introduction 25 years ago.
UK whistleblowing laws protect workers who report wrongdoing providing certain conditions are met. One of these conditions is that the worker reasonably believes the information shows certain wrongdoing. The law sets out six wide and overlapping categories of wrongdoing, including danger to health and safety, criminal offences, and breach of a legal obligation.
The Employment Rights Bill proposes to add a new, seventh category of wrongdoing about which workers can blow the whistle: sexual harassment.
Despite taking up less than half a page of the 158-page Bill, the proposal highlights the increasing emphasis being placed on tackling workplace sexual harassment and toxic cultures.
Not only does it send a clear message that sexual harassment is a serious issue, but it reinforces that it falls squarely within the scope of whistleblowing protection. By clarifying that individuals qualify for protection from detriment or dismissal as a result of blowing the whistle on sexual harassment, it may even encourage more victims to come forward.
The proposals also support the broader crackdown on silencing victims of sexual harassment. Terms in agreements seeking to prevent someone making a protected disclosure are already void. But by making it explicit in legislation that sexual harassment can be the basis for a protected disclosure, it clarifies for all parties that this type of disclosure cannot be prevented through a settlement agreement or otherwise.
However, the proposed changes do not seem to be a response to a gap in legal protection nor target the elements of the legislation arguably most ripe for reform (see our previous blog here).
The courts have been clear that disclosures about sexual harassment could fall within one (or more) of the existing categories of wrongdoing set out above, so the proposals are unlikely to bring more people within the scope of whistleblowing protection.
Notably, no changes are proposed to the requirement that, for a worker to be protected under whistleblowing laws, they must have a ‘reasonable belief’ that the disclosure of information is ‘in the public interest’.
The courts and tribunal have been hesitant to apply whistleblowing protection to ‘private workplace disputes’, so workers who report sexual harassment will continue to face uncertainty as to whether their disclosure would reasonably be regarded as having been made by them ‘in the public interest’.
However, evidence suggests that workplace sexual harassment frequently involves repeat offenders, with 65% of those who encounter workplace harassment or bullying being aware of multiple others that have suffered at the hands of their alleged abuser.1 In such cases, it may be relatively straightforward for a whistleblower to demonstrate to a tribunal that it is reasonable for them to view their disclosure as being in the public interest. However, for workers who are sole victims of sexual harassment, showing that the public interest is engaged may be more difficult, although not impossible (e.g. if the worker believes that the alleged harasser poses a risk to the wider workforce, regardless of whether there is evidence of them having previously harassed other staff).
Arguably the proposals in the Employment Rights Bill merely reiterate rather than revolutionise existing whistleblowing protections. But that may not be the end of the story.
The former government launched a broad review in 2023 into the effectiveness of the UK’s whistleblowing framework. This appeared to have been consigned to the archives with no clear indication from the Labour government that they were planning any wider changes than those outlined above.
However, last month Justin Madders MP (Minister for Employment Rights, Competition and Markets) hinted at unfinished business. Remarking that it was not appropriate “to let that work go to waste", he said the review would be a starting point for further work in this area.
However, this was followed by confirmation last week that “the government has no plans to extend the protections more generally."
Given the extensive employment law changes already committed to by the government, it remains uncertain what form (if any) further changes may take.
For more information on the upcoming employment law changes, clients can access our UK Employment Law Reforms Tracker. You can also read more about effective whistleblowing management on our dedicated website. Please get in touch if you wish to discuss any of the proposals.
18 November 2024
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