As mentioned last month in our round up of April 2026 changes springing forth under the Employment Rights Act 2025 (‘ERA2025’) on 6 April 2026, section 23 of the ERA2025 was brought into force. This provision amends the definition of a qualifying disclosure under whistleblowing regulations in section 43B of the Employment Rights Act 1996 (‘ERA 1996’), to include sexual harassment as a protected disclosure.
This means that whistle-blowers who make a sexual harassment disclosure, provided that the other statutory tests are met (e.g. public interest and reasonable belief), will automatically have protection from detriment and unfair dismissal.
The Legal Tests
The definition of whistleblowing
As amended s 43B of ERA 1996 now provides that an individual is a whistleblower if they are an employee or worker making a qualifying disclosure which they reasonably believe is in the public interest to their employer, responsible person or other prescribed person about an incident, which in the whistleblower’s reasonable belief tends to show any of the following:
- a criminal offence, for example fraud
- someone’s health and safety is in danger
- risk or actual damage to the environment
- a miscarriage of justice
- the company is breaking the law, for example does not have the right insurance
- you believe someone is covering up wrongdoing
- sexual harassment
As a whistleblower, the individual is protected by law and should not be treated unfairly because of their disclosure.
Personal grievances are not covered by whistleblowing law, unless the case is in the public interest.
The definition of sexual harassment
Sexual harassment is defined as ’unwanted conduct of a sexual nature, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.’
ACAS has provided examples of sexual harassment which include:
- flirting, gesturing or making sexual remarks about someone's body, clothing or appearance
- asking questions about someone's sex life
- telling sexually offensive jokes, making sexual comments or jokes about someone's sexual orientation or gender reassignment
- displaying or sharing pornographic or sexual images, or other sexual content
- touching someone against their will, for example, hugging them
- sexual assault or rape
Comment
Until now, allegations around sexual harassment could have been considered to be a qualifying disclosure, by falling under a ‘breach of a legal obligation’. The introduction of a standalone whistleblowing label for sexual harassment removes any ambiguity and potential barriers that could have previously deterred victims from speaking up.
Employers should ensure that relevant policies, including Whistleblowing, Grievance and Dignity at Work policies, are updated to include explicit reference to sexual harassment as a qualifying disclosure. They should also ensure that training is provided to staff members so that they are able to recognise and treat complaints of sexual harassment as whistleblowing disclosures.
Previous insights in our ERA Series
Employment Rights Act Series: The Fair Work Agency’s strategy and rules of engagement (Principal Associate, Suzanne Nulty) 29 April 2026
Employment Rights Act Series: Further consultations on redundancy, industrial action, and agency work (Principal Associate, Louise Singh) 30 March 2026
Employment Rights Act Series: April 2026 changes spring into force – practical considerations for employers (Partner, Mark Landon and Principal Associate, Suzanne Nulty) 27 March 2026
Employment Rights Act Series: Further consultations for Spring 2026 (Principal Associate, Louise Singh) 25 February 2026
Employment Rights Act Series: New trade union law now in force and updated timeline (Principal Associate, Louise Singh) 25 February 2026
Employment Rights Act Series: Redundancy collective consultation: Doubling down on recalcitrant employers by doubling up on protective awards (Principal Associate, Suzanne Nulty and Legal Director, Victoria Duddles) 29 January 2026
Hark! The Employment Rights Act 2025 is nigh… (Partner, Nick Newman and Principal Associate, Louise Singh) 17 December 2025
Employment Rights Bill Series: Four ‘autumn 2025’ consultation launched (Principal Associate, Matt Smith) 24 October 2025
Employment Rights Bill Series: Amendments to zero-hours contracts provisions (Principal Associate, Suzanne Nulty and Principal Associate, Louise Singh) 07 August 2025
Employment Rights Bill Series: Amendments to the Fire and Re-hire provisions (Legal Director, Ross Hutchison) 22 July 2025
Employment Rights Bill series | July amendments: NDA changes and more (Principal Associate, Louise Singh) 13 July 2025
Employment Right Bill Series: Implementation Roadmap – a long and winding road (Principal Associate, Suzanne Nulty and Partner, Mark Landon) 08 July 2025
Employment Right Bill Series: House of Lords Stages completed (Principal Associate, Suzanne Nulty) 26 June 2025
Employment Rights Bill Series: The House of Lords Stages so far (Principal Associate, Suzanne Nulty) 6 June 2025
Employment Rights Bill Series: Employment Rights Bill moves from Commons to Lords (Principal Associate, Suzanne Nulty) 25 March 2025
Employment Rights Bill Series continued (Principal Associate, Suzanne Nulty) 7 March 2025
Employment Rights Bill Series: Zero Hours Contracts and Guaranteed Hours: A Zero-Sum policy? (Principal Associate, Louise Singh) 27 January 2025
Employment Rights Bill Series: Small but significant changes to the statutory sick pay system (Principal Associate, Ashley Powis) 13 December 2024
Employment Rights Bill Series: First set of proposed amendments: what it means and what to expect (Principal Associate, Suzanne Nulty) 6 December 2024
Employment Rights Bill Series: Further rules on fair tipping (Principal Associate, Ashley Powis) 3 December 2024
Employment Rights Bill Series: Dismissal and Re-engagement - Tying the Hands of employers? (Legal Director, Ross Hutchison) 22 November 2024
Employment Rights Bill Series: The Fair Work Agency (Principal Associate, Suzanne Nulty) 15 November 2024
Employment Rights Bill Series: The Pendulum Swings on Industrial Relation (Partner Andrew Forrest and Principal Associate, Louise Singh) 8 November 2024
Employment Rights Bill Series: Day 1 right to claim unfair dismissal (Principal Associate, Suzanne Nulty and Associate, Lauren Barchet) 25 October 2024
Employment Right Bill Series – Flexible Working “Further Flexion” (Principal Associate, Suzanne Nulty) 21 October 2024
The Employment Rights Bill Series: 2024 – What’s in, What’s out, and What’s next (Principal Associates, Louise Singh and Suzanne Nulty) 11 October 2024
If you require advice on sexual harassment in the workplace, please speak to one of our expert employment law solicitors.
