Protecting women against workplace harassment moves up UK political agenda

The Worker Protection (Amendment of Equality Act 2010) Bill was approved by MPs late last week, bringing an end to a period of parliamentary scrutiny of proposals that had been brought forward by Liberal Democrat MP Wera Hobhouse.

The legislation, which is expected to receive Royal Assent in the coming days, will impose a new duty on UK employers to take reasonable steps to prevent their employees experiencing workplace sexual harassment. Employment tribunals will also be given the power to apply an uplift of up to 25% on tribunal awards where the duty to prevent harassment has not been complied with.

Though the UK government endorsed Hobhouse’s plans to legislate, backers of the bill had to agree to changes to the initial proposals in order to obtain sufficient support for the new legislation from law makers in the House of Lords. The changes mean that employers will not be required to take ‘all’ reasonable steps to comply with their new duty and nor will they be liable for the harassment of staff by third parties, such as clients or customers.

Passage of the new legislation comes at a time when the UK Labour party has signalled its own plans to strengthen the whistleblowing protections for the reporting of sexual harassment in the workplace should it be voted into power at the next UK general election.

In her speech to the Labour party conference, shadow attorney general Emily Thornberry cited a recent report that two-thirds of female surgeons admit suffering sexual harassment at the hands of their senior male colleagues. She said: “For too long, a woman suffering sexual harassment in the workplace has faced a terrible choice: if she speaks out, the individual responsible may be investigated, but even then, she still risks losing her job and her other employment rights, while he gets a slap on the wrist.”

To reassure women, who are disproportionately affected by sexual harassment, that they can “speak up” in the workplace without fear of consequence, Thornberry has proposed the extension of whistleblowing protection to those reporting sexual harassment, bullying and discrimination. 

To underpin that aim, the Labour party has appointed Marina Wheeler KC to advise it on whistleblowing protection in relation to sexual harassment concerns. This will involve looking at the public interest test for personal grievances and considering the reform of current legislation and guidance.

What is the current legislative framework?

Under the Employment Rights Act 1996, workers are protected against unfair dismissal and detrimental treatment if they make a disclosure of information of one or more certain types of wrongdoing which they reasonably believe is in the public interest. Employers are also liable for acts of sexual harassment by one employee towards another unless they have taken all reasonable steps to prevent it under the Equality Act 2010.

A worker seeking whistleblower protection for raising a sexual harassment concern could satisfy the wrongdoing requirement in relation to the concern being a breach of a legal obligation, a criminal offence, or a health and safety risk, for example.

To satisfy the public interest requirement, the worker would also have to establish that they have a reasonable belief that more than one individual is impacted by or at risk of harassment; or that there is a culture where sexual harassment occurs and is tolerated in the workplace. Generally, if the complaint of sexual harassment is limited to one individual, it would not qualify for whistleblower protection and would instead be dealt with through a grievance process governed by employment and equality law.

What are the legal considerations?

A point of interest will be how the public interest test is reassessed in the context of sexual harassment concerns, and what will be required to distinguish a personal grievance of sexual harassment from a public interest concern qualifying for whistleblower protection. While making the public interest test too broad risks opening the floodgates for whistleblower protection in other unintended contexts, drawing it too narrow would make little difference to the current state of protection.

Finalisation of the Worker Protection (Amendment of Equality Act 2010) Bill shows that there is an increasing legislative focus on addressing this issue.

While clarity will certainly be welcome in relation to whistleblowing protections and employers’ preventative duties in relation to sexual harassment, whether these are the most appropriate channels to effect meaningful change will be an important question to bear in mind as this conversation moves forward.