Blowing the Whistle on Sexual Harassment!

The Employment Rights Bill: how will changes to whistleblowing law affect sexual harassment claims?

Introduction

On 10 October 2024, the Labour Government introduced the Employment Rights Bill (“the Bill”), which is currently at its 2nd reading in the House of Commons. The Bill contains a wide range of proposed reforms which will affect a wide range of worker’s rights – from the duty on employers to not permit third parties to harass their employees (see our blog here) to making a sexual harassment complaint into a qualifying disclosure for the purposes of whistleblowing claims.

Clause 18 of the Bill amends the Employment Rights Act 1996 (“ERA 1996”) in the following ways:

“(2) In section 43B (disclosures qualifying for protection), in subsection (1), after paragraph d insert –

“(da) that sexual harassment has occurred, is occurring or is likely to occur,”.

(3) In section 43L(1) (other interpretative provisions), after the definition of “the relevant failure” insert –

““sexual harassment” means harassment of the kind described in section 26(2) of the Equality Act 2010 (unwanted conduct of a sexual nature)”

One of the objectives of the Bill is to increase “protection from sexual harassment”, but, given, the current protections already in place, will these changes be of any practical significance?

Background and current law

The Equality Act 2010

The Equality Act 2010 (“EqA 2010”) protects employees in the following ways:

• Section 26(2) allows the employee (“B”) to bring a claim against A if they engage in unwanted conduct of a sexual nature. 
• Section 26(3) allows B to bring a claim against A if they treat B less favourably than A would treat B if B had not rejected or submitted to the unwanted conduct of a sexual nature.
• Section 27 also protects B from victimisation where B does a protected act (or A believes that B has done, or may do, a protected act) and A subjects B to a detriment because of the protected act. 

Section 27 EqA 2010 is meant to protect the employee from retaliation if they take steps such as lodge a grievance which raises allegations of sexual harassment, or issue Tribunal proceedings under sections 26(2) or (3) EqA 2010.

However, the employee is not protected if they make a false allegation in bad faith (section 27(3) EqA 2010). 

Employment Rights Act 1996

To pursue a whistleblowing claim, the worker must make a protected disclosure. This is defined under section 43B ERA 1996 as a disclosure of information, which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:

• That a criminal offence has been committed, is being committed or is likely to be committed,
• That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,
• That a miscarriage of justice has occurred, is occurring or is likely to occur,
• That the health or safety of any individual has been, is being or is likely to be endangered,
• That the environment has been, is being or is likely to be damaged, or
• That information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

Although sexual harassment is not included in the above list, it nonetheless remains possible to make a complaint of sexual harassment into a qualifying disclosure in one or more of the following ways:

• Depending on the nature of the complaint, it could show that a criminal offence has been committed or is being committed. This would invariably be the case with a sexual assault. 
• A worker could also argue that the sexual harassment of which they complain means that their (or others) health or safety has been, is being or is likely to be endangered. 
• That the incidents of sexual harassment amount to a breach of a legal obligation (not to harass or victimise under the EqA 2010 as set out above). 
• Certain complaints may also show that the employer is concealing information; for example – where the employer deliberately covers up acts of sexual misconduct by its senior management.

Arguably, in most situations the public interest requirement is also satisfied – employers invariably hire members of the public for their workforce and preventing sexual harassment is surely always in their (the public) interest. Indeed, certain regulatory bodies (such as the BSB, SRA and the FCA) treat allegations of sexual harassment as a professional disciplinary issue, which means that these regulators are clearly of the view that there is a public interest element.

How will the Bill change the law?

The Bill gives certainty that sexual harassment claims can be pursued as a whistleblowing claim as well as a standalone sexual harassment claim under the EqA 2010. But what added benefit is there to a Claimant in pursuing these claims as a whistleblowing claim? There are a few, as follows:

• Unlike in a victimisation claim, a whistleblower may make an application for interim relief which, if successful, results in the Tribunal ordering the employer to continue the employment contract (and continue to pay them) until the case is finally determined. If successful, obtaining interim relief can be very beneficially to a claimant as not only will they continue to be paid, but they will also have strengthened their bargaining position in settlement discussions quite considerably, not least as the Employment Tribunals are sometimes taking 12 to 18 months to list some hearings.  
• The bad faith defence is not available to an employer facing a whistleblowing claim (bad faith is only relevant at the remedies stage, which can result in the Tribunal reducing compensation by up to 25%). 

However, if any claim or part thereof is technically “out of time” it is far easier for Claimants to pursue an out of time claim under the EqA 2010 compared to bringing an out of time whistleblowing claim under ERA 1996. 

The test for extending time for a whistleblowing claim is to show that it was “not reasonably practicable” for the claim to be presented in time, which is difficult to succeed upon. By contrast, the “just and equitable” test gives the Tribunal a far broader discretion to extend time in in claims brought under the EqA 2010.

The Tribunal’s flexible approach to extending out of time claims under the EqA 2010 is particularly valuable for victims of sexual harassment, who often only step forward well beyond the three-month limitation period for starting ACAS Early Conciliation. 

In our view, the Government could give far better protection for those individuals who have experienced sexual harassment at work by extending the limitation period for employment tribunal claims from 3 months of the date of the last act complained of to 12 months. 

Farore Law is a boutique law firm that has a wealth of experience in advising senior executives in sexual harassment and whistleblowing claims as well as those employers’ facing allegations. We know that these situations can often involve many emotions and need to be handled with sensitivity and care. We can help you. 

Please contact us if you require assistance or contact Rachel O’Connell at oconnell@farorelaw.co.uk.