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Whistleblowing on workplace sexual harassment

The #MeToo movement has undoubtedly given courage to many others to come forward and call out unwanted, unwelcome sexual harassment in the workplace. It has also shown the sheer scale of it.

At work, employers have a duty of care or responsibility to look after the wellbeing of their employees. Under the Equality Act 2010, employers are liable for acts of sexual harassment by one employee towards another unless they have taken all reasonable steps to prevent it.

Harassment includes but is not limited to:

  • flirting or making sexual remarks about someone’s body, clothing or appearance
  • sexually offensive jokes
  • unwelcome sexual advances and touching someone against their will
  • asking questions about someone’s sex life
  • sharing pornographic or sexual images

In the past, sexual harassment was generally considered as an HR issue, that could be dealt with via a formal grievance procedure. However, in many circumstances there can be significant overlap between HR issues and whistleblowing concerns.

Protect’s Legal Director, Sybille Raphael said, “In situations where the sexual harassment is of a group of people, or presents a risk to more than one individual, whistleblowing could be relevant – but  whistleblowing disclosures must have a ‘public interest’ element to be legally protected. Broadly, this means the disclosure is not just in the personal interest of one individual, but in the interests of “the public” or a group of people.

Toxic work cultures and sexual harassment and whistleblowing  is an issue that Protect’s Advice Line has come across, and a case study in Protect’s report Silence in the City 2 highlights a particularly unpleasant example of systemic sexual harassment.

Under the UK’s whistleblowing law, the for a whistleblowing concern to be ‘protected’, an individual first has to raise their concern, by making a disclosure. A disclosure can be made to a line manager, a recognised internal contact, a regulator or even wider.

In relation to sexual harassment wrongdoing may fall into one of the following categories of harm:

  • A breach of a legal obligation, including breaches of the Equality Act 2010
  • A criminal offence, including those under the Protection from Harassment Act 1996 (this requires either two victims or at least two occasions of harassment with one victim)
  • A health and safety risk, including risks to mental health and other physical health risks derived from stress, self-harming and suicide.

In 2018 the the Equality and Human Rights Commission report, ‘Turning Tables, Ending Sexual Harassment in the Workplace set out guidance for employers – but how much has changed?