Reporting workplace sexual harassment high on UK political agendas

As we highlighted last week, Sunday 23 June was World Whistleblowers day, designed to raise the importance of reporting malpractice and wrongdoing and the important role whistleblowers play in that. So, on the day the UK goes to the polls we ask what are the three mainstream parties’ manifesto commitments on this issue? If, as expected, Labour wins how will the current law be strengthened? We’ll consider that.

The UK’s whistleblowing charity, Protect, sets out the main parties’ positions.

The Conservatives have pledged to carefully consider the implications of the review of the whistleblowing framework for the NHS and consult on a disbarring regime for NHS managers. They have also promised to improve standards in councils by making their performance more transparent through the Office for Local Government.

Labour says they will strengthen the rights and protections available to whistleblowers in the workplace, including on sexual harassment. They are promising to implement their ‘Plan to Make Work Pay: Delivering a New Deal for Working People’ in full within their first 100 days in power (if they win the election). This Plan bans exploitative zero hours contracts, bans fire, and rehire, and introduces basic rights from day one (including protection from unfair dismissal).

The Liberal Democrats have pledged to protect whistleblowers by establishing a new Office of the Whistleblower, creating new legal protections, and promoting greater public awareness of their rights. An Office of the Whistleblower Private Members Bill had been working its way through parliament, albeit at an early stage, but had fallen at the wayside with the calling of the election. 
So, if Labour wins, they promise to strengthen protection for whistleblowers and, in particular, for women who report sexual harassment at work. This was first discussed back in October last year when they announced that Marina Wheeler KC had been appointed as Labour’s adviser on protecting women against workplace harassment tasked with looking at how to make it easier for workers to blow the whistle on bullying and discrimination at work. They also back the new Worker Protection (Amendment of Equality Act 2010) Act 2024, due to come into force in October, which places a new positive duty on employers to take ‘reasonable steps’ to prevent employees experiencing workplace harassment.

So, let’s consider that. Earlier I caught up with the discrimination specialist Sarah Munro who joined me by video-link from Edinburgh. First question, in what way is the current law inadequate? 

Sarah Munro: “So the current law sets out that in order to get the protection afforded to a whistleblower there has to be a public interest element to that. So, for example, if somebody raises a health and safety concern about something going on in their workplace there's clearly a public interest to that because it relates to a safety issue that could impact a whole workforce. The same if there is a culture of race discrimination in the workforce where people of a particular minority ethnic group are not being promoted. Again, that is a wide-ranging issue that there is a public interest to. But if you have a situation where an individual is being sexually harassed in work, and that is a one-off incident, or a repeated incident, with that one individual, at the moment that doesn't meet the public interest test and therefore that individual would not have the same whistleblowing protection as others who have a public interest element to their complaint. There may be other protections for that individual, but the whistleblowing rules do not cover at this point.”

Joe Glavina: “Can I ask you about what Labour is proposing by way of reform. They have published their manifesto now and I know that Marina Wheeler has been appointed to look into this?”

Sarah Munro: “Yes, that's right. There's a small sentence in the New Deal that Labour have published that says they're going to look at whistleblowing and look at extending it to cover sexual harassment in the workplace. That's all we've seen so far and, yes, you're right, Marina Wheeler was appointed, I think it was last Autumn, to look at whistleblowing protections for Labour and to see what reform is needed but, again, we haven't seen any output from that yet.”

Joe Glavina: “There is legislation on its way in October, the Worker Protection Act, which will bring in a new positive duty on employers to take reasonable steps to prevent employees experiencing workplace harassment. What's the link here to whistleblowing?”
Sarah Munro: “Yes, so you're right at the moment there is what we often refer to as the ‘reasonable steps’ defence that employers can use if an individual in their workplace commits an act of discrimination, then the employer can say well we trained this individual, we put in place measures, we took reasonable steps to stop them from acting in a discriminatory way, therefore we are not responsible for their actions. This new law that's coming into force in October goes a step further in respect to sexual harassment and puts a proactive duty on the employer to take reasonable steps to prevent sexual harassment in the workplace. Now, a number of our clients will already be in a really strong place because they’ll have existing training programmes, existing anti-harassment policies in place and so they will be ready to deal with this new law, but it is a good time for our clients to look at what they've got in place and make sure it's fit for purpose. This is obviously separate from the whistleblowing protections that are currently in place but it does give more power to individuals to have an argument to say, look, you as my employer haven't done enough, you haven't taken reasonable steps to prevent sexual harassment in the workplace and, arguably, and we've not seen this argued yet, that is a wider implication and potentially could allow individuals to make the case for a public interest element and then get those whistleblowing protections. But as you say, it's new law, so we are waiting to see how this all pans out.”

Joe Glavina: “Can I ask you about the investigation stage, Sarah. These cases are often complex and sensitive and with a lot riding on them. I’m aware of the trend for clients to bring in outside expertise to help to make sure the investigation is conducted to the highest standard. Can you tell me about that?”

Sarah Munro: “Yes, it's a good point, Joe, because historically clients tended to deal with complex grievances, or other types of investigations, in-house but given the recent  media attention on high profile sexual harassment cases a number of our clients feel that they want that independence, that separation, and particularly when they're complex and there could be potential reputational damage they would prefer the investigation to be conducted externally. That’s where ourselves, and other law firms and barristers as well, have stepped in to be able to help clients with investigations to give that independence and separation.”

Joe Glavina: “Finally, Sarah, what’s your key message to viewers on this?” 

Sarah Munro: “I think the main thing for me is to think about this. It’s really important when you have a complex and potentially sensitive issue in your workplace that you stop, and what we advise clients to do is to triage the issue. It sounds quite formal, but to make sure you've got the right person dealing with an investigation, or an issue, and just making sure the support is in place for the individual who has raised the complaint, but also for the individual who may have been accused of something quite serious, so that you are giving everyone in the process as fair a hearing as possible and by taking the time to take those steps it ensures that you protect the company, but also protect the individuals through what can be a really difficult process.”

On the subject of whistleblowing, as well as strengthening protection around the reporting of sexual harassment, there are also new laws to protect whistleblowers who report workplace fraud. The Economic Crime and Corporate Transparency Act 2023 received Royal Assent last year and will bring in, at some point next year probably, the new offence of failing to prevent fraud. It will mean that large businesses could be held criminally liable where a person associated with it, such as an employee, commits a fraud intending to benefit the organisation and the business did not have reasonable procedures in place to prevent the fraud. Last week criminal defence and corporate crime specialist, Neil McInnes, talked to this programme about that in some detail. That’s ‘World Whistleblowers Day puts spotlight on workplace fraud’ and is available for viewing now from the Out-Law website.

LINKS
- Link to HRNews programme: ‘World Whistleblowers Day puts spotlight on workplace fraud.’