Disclosures around suffering sexual harassment

Partners' Rebecca Cairney and Mark Landon discuss upcoming changes to UK employment law that will make sexual harassment disclosures qualify as protected whistleblowing under the Employment Rights Act 2025. 

Transcript

Rebecca Cairney: Hello, everybody, and welcome to the latest version of the Employment Insights Podcast.

I'm here today with Mark Landon, who is a Partner in our London team. Hi Mark, nice to see you again.

Mark Landon Hi, Rebecca.

Rebecca Cairney My name's Rebecca Cairney, and I'm a Partner based in the Liverpool office.
So, Mark, today we are going to be looking, or doing a deep dive, I suppose, into one of the changes that's been brought about by the new Employment Rights Act 2025.

And I understand that this session is to look at, disclosures around suffering sexual harassment and, the proposal to make that a protected disclosure, affording whistle-blowing protection.

Mark Landon: Yeah, that's right. Under Section 23 of the Employment Rights Act 2025, the definition of a qualifying disclosure for whistleblowing purposes is going to include a disclosure that sexual harassment has occurred, is occurring, or is likely to occur.

That said, you're still going to have to demonstrate that it's a disclosure in the public interest, and that actually the usual rules around whistleblowing have been satisfied in order to have protection under whistleblowing law.

Rebecca Cairney: Yeah, okay. So, is it probably a good place to start to kind of remind ourselves how the whistleblower protection works in practice, and why it's important?

Mark Landon: Yeah, yeah, I think that's right. 

I mean, why it's important is that actually this was brought in to encourage people to raise concerns about things like health and safety breaches, regulatory breaches, or fraud, without a concern that they would be dismissed or subjected to a detriment by their employer. 

So, it was very much to encourage people to come forward, and actually to help organisations avoid criminal liability, or litigation, or reputational damage. So, there are very important reasons for having this whistleblowing protection.

Yeah. I mean, that said, there is no general legal duty on an employee to disclose wrongdoing.
Although there might be an implied duty of fidelity if you're in a managerial or supervisory role to report the wrongdoing of others. And of course, if you're in certain industries, you might be under some sort of regulatory obligation to report wrongdoing.

And certainly, under health and safety law, there is an obligation on workers to notify management of any risk to the health and safety of themselves or others.

So, you know, what it is important to bear in mind is that whistleblowing law doesn't impose a positive obligation on employers to encourage whistleblowing, but what it does instead is to require employers
to refrain from subjecting people who do raise a concern to any detriment or risk of dismissal, if what they have complained about falls within the scope of a protected disclosure.

Rebecca Cairney: Yeah, understood. And so, how… let's go through, I suppose, how the whistleblowing protection actually works then.

Mark Landon: Okay, well, we all call it whistleblowing. I mean, the posh name is Public Interest Disclosure. It's the Public Interest Disclosure Act 1998, and what it did was to amend the Employment Rights Act 1996. And what it says is that, subject to meeting two preconditions, the dismissal of an employee will be automatically unfair if the reason or main reason for their dismissal is that they have made a protected disclosure.

And in addition, workers, so not just employees, but workers, are protected from being subjected to a detriment on the ground that they have made a protected disclosure.

Now, whether or not you qualify for that protection depends upon two things.

First, your disclosure must be a qualifying disclosure.

And then it must be a protected disclosure, which really depends who you blow the whistle to, because there are very, sort of, prescribed order in which you should actually raise concerns in order for something to be protected. So, first, is it qualifying? Second, have you actually complained to the right entity, if you like?

And to be qualifying, a disclosure has to satisfy four conditions. It must be a disclosure of information.
The disclosure must tend to show that one or more of six types of malpractice is taking place, has taken place, or is likely to take place.

The worker must have a reasonable belief that the information does show one of those six relevant malpractices, and the worker must have a reasonable belief that the disclosure is in the public interest. So, I suppose we want to break down those four things in total.

You've got to make a disclosure of information. So, it can't just be your opinion that something has gone wrong. There must be a conveyance of facts. It might be facts that your employer already knew about and you're bringing it to their attention. It might be something new, it could be something you disclose in writing, or verbally, or I guess, you know, even sort of pictorially on your phone if you were filming, for example, something that was going wrong. And you've also got to be slightly careful about how you obtain that information, because if you obtain the information unlawfully, you may be subject to disciplinary proceedings. And it's not about the fact you disclosed it, it's about how you actually got the information in the first place.

So, that's the first thing. You've got to convey some information. It can't just be your opinion that something's going on that's wrong.

Secondly, the disclosure must show that one or more of six types of malpractice is occurring, or has happened already, or is likely to happen.

And that would include a criminal offence, a breach of any legal obligation, a miscarriage of justice, danger to health and safety, damage to the environment, or the deliberate concealment of information about any of those things.

I think from an employment context. It's the breach of any legal obligation that is relied upon by employees, because, you know, they would argue that if, for example, you do harass me, well, that is a breach of a legal obligation under discrimination law, and that brings it within one of these six types of malpractice.

You've then got to show that actually, I reasonably believed that the information I'm disclosing does show that malpractice was taking place, and that's a subjective thing. I mean, if actually I'm wrong, but I genuinely believed that there was malpractice going on, I would be protected against any form of sort of retribution by the employer. And I've also got to believe that what I am disclosing is in the public interest. 

Now, that is something which is often argued about when someone in the employment context complains and says it's protected under whistleblowing law. Because, you know, it wasn't really meant to cover individual acts of unfairness or discrimination or whatever. But in fact, over the course of time, case law has said, well, in certain circumstances, actually, even if you're complaining about something that's been done to you in the workplace, that might still be in the public interest.

So, I suppose, if you take something like sexual harassment, there's been a lot of it reported with regard to, say, the British Army, the Metropolitan Police. I think, you know, frankly, any sort of hierarchical public institution type of thing.

Well, a complaint by an individual of suffering sexual harassment in that context is likely to be in the public interest. It suggests there's a systemic problem. It's not just a one-off. There is something going wrong.

So, you know, if you imagine that, Epstein was an employer.

Actually, what you would argue there is that if it was evidence that a person was trafficking people and exploiting people, there was a systemic, systematic abuse going on. Clearly, that is in the public interest.

Whereas if Epstein had been, I don't know, a local bank manager who had just made inappropriate comments to a member of staff, when you would argue that that wouldn't be in the public interest. So, there's a real, issue about context in all of this. But if you can show it is qualifying, what then matters is whether your disclosure is protected, and that depends on the identity of the person or entity to whom you make the disclosure.

Now, internal disclosures will always be protected, and that's why, for good reason, employers will normally have a whistle-blowing helpline, they'll have clear, directions as to who you would raise a concern with, and so on and so forth. And if you think about it, a lot of grievance policies are effectively a sort of whistle-blowing policy. You know, if you think there is an ongoing breach of health and safety, you must report it to X or Y within the organisation.

And actually, if you've set up an external helpline, that still counts as an internal disclosure.
And that's what the law encourages first and foremost, because the idea behind all of this is to raise malpractice with the employer so that an employer can put it right. You know, if there isn't a deliberate top-down attempt to do something wrong.

Actually, you can raise what's going on, it can be put right, and that should be the end of it.
But external disclosures are also protected in certain circumstances. So, if you are making a disclosure to what is described to as a responsible third party. Then that will be okay, if you think that they are, that they have responsibility, if you like,  for whatever it is that's going wrong.

So, if I am an auditor, and I go into a client and I discover that there is some systemic wrongdoing going on and I report it to the client, because they're the ones that need to put it right, that would be a protected disclosure.

So, if my boss, the accountancy firm, got upset because I'd upset a client, well, I am protected, because actually, quite rightly, I was raising the issue with the people who are responsible for the malpractice.

A disclosure to a legal advisor for the purposes of obtaining legal advice will be protected.
And also, so is a disclosure to a government minister, where you're either employed by a personal body appointed under statute, such as the NHS or a utility regulator, and where you're reporting it to the relevant minister. You know, at the end of the day, the buck stops with them.

And also, Parliament has a list of prescribed people to whom a worker can make disclosures, such as Revenue and Customs.

So, if you say, for example, I think my employer is diddling the taxman, well, actually, if you, you know, related that to HMRC, that would be protected.

Now, anything over and above that, any wider disclosure, is going to be very fact-specific, so going to the newspapers, for example, is unlikely to be a protected disclosure, unless you have exhausted
all those other forms of disclosure first. So, if I raise it with my employer, and my employer ignores it.
And I raise it with the government, and the government ignore it. Well, now and again, you do see, don't you, in the media? Some campaign whereby, I mean, I guess an example might well be the sort of sub-postmasters and the Horizon issue.

Rebecca Cairney Yeah.

Mark Landon: Because, you know, I mean, it's a different one, because some postmasters aren't employed by the post office. But you could imagine that if some, and this is speculation, but if somebody within the post office had gone to someone in authority and went, I think the Horizon system is unreliable and it was just swept under the carpet. I'm not saying it was, but if it had been, and if they had then gone to the government regulator and said, I think the Horizon system is unreliable, and again, that was swept under the carpet, then I think there would be an argument that going to the press, because everyone else was sweeping it under the carpet would be something that was protected. And of course, there's potential then for immense reputational damage as well, because I think, like a lot of regulatory things, very often the real damage isn't the original mistake, it's trying to cover it up.

You know, that's where I think a lot of organisations really come a cropper.

Rebecca Cairney: Yeah.

Mark Landon: That said, there are certain circumstances where whistleblowing will not apply, and that is where you disclose legally privileged information.

Where disclosure is a crime, e.g. under the Official Secrets Act, and also, currently, the armed forces are not protected by whistleblowing legislation.

So, you know, that's how it works, and what the law says is, if I make a qualifying protected disclosure, you can't sack me, you can't subject me to any detriment short of dismissal. Employees have protection against dismissal, employees and workers have protection against detriment short of dismissal.

It's pretty complicated.

The claim would be brought in the Employment Tribunal. I think where it's seen by employees as a useful tool, is that there is no cap on compensation. If I'm dismissed for whistleblowing.
Whereas with ordinary unfair dismissal, and until January 2027, it's capped at 52 weeks gross pay, or £118,000, there is no cap on compensation for a whistle-blowing-related dismissal.

And I think, in truth, you know, you and I have come across situations where people have pleaded whistleblowing, and it's pretty unlikely there was a whistleblowing situation, but tactically, they think it strengthens their claim, and I think that is something that does concern the government. But actually, if you succeed, you've got to bring a claim within 3 months. Subject to the usual rules about an extension of time in limited circumstances. You can actually, if you complain to the tribunal, they can send details of the whistleblowing claim to the relevant regulator, which, of course, can be quite a worrying thing for the organisation

So you can imagine with things like the water companies; that would be a classic whistleblowing issue, very much in the news, the dumping of sewage in rivers, etc. You know, if I raised a claim and said, I work for XY Water Authority, and I raised a complaint that we were dumping raw sewage in the river, and I lost my job. I got selected for redundancy because of that. You could see that an employment tribunal might refer that straight to the regulator, particularly given at the moment that the water companies are under the spotlight.

So, you know, so it's important stuff. You can get compensation. As I said, it's uncapped. You can get interim relief.

They can order reinstatement or re-engagement if the employer got rid of you, and so on and so forth. So, you know, it does matter, this stuff. It is a serious piece of protective law.

Rebecca Cairney: Yeah, absolutely, absolutely. Thank you. And so, what will be, I suppose, the practical consequences of making sexual harassment complaints, you know, qualify as protected disclosures, do you think?

Mark Landon: Well, you know, in certain circumstances, there already will be protected disclosures. And I think, actually, of all the forms of harassment under equality law, sexual harassment is probably the most genuinely public interest form of harassment. You know, and I think that goes back to Harvey Weinstein and people abusing positions of authority and so on and so forth.

And, you know, I've always said to clients that I think, where you definitely veer more towards a protected disclosure is if what you're arguing is there is some sort of systemic cover-up. So we know, for example, that within NHS trusts. There has been, you know, uncovered a history of settlement agreements where, essentially, acts of sexual harassment by more senior members of staff against more junior members of staff were settled with non-disclosure agreements, you know, hushed up effectively. 

Now. You know, in those sorts of circumstances, I think any complaint of sexual harassment is likely to be, you know, in the public interest. I think what this change under the Employment Rights Act 2025 will do, is to lessen the scope for any ambiguity around this. I mean, frankly, I think you've got a much better chance now of arguing that it's at least in the public interest. And then, at that point, provided you've satisfied the other preconditions for it being protected, you know, you're in a much stronger position. I think what it means in practice is this. If an employee raises a grievance about sexual harassment,  all responsible employers would take it seriously. But I think I would start from the basis of assuming this will be whistle-blowing protected.

Now, that won't be an issue. If you properly investigate it. Now, you may find you don't think there has been sexual harassment, but if the evidence supports your view, fine. If you find there has been sexual harassment and you deal with it appropriately, actually, there's nothing to complain about under whistleblowing law. You know, my employer dealt with it. But I think, you know, if I'm being,
it sounds slightly cynical, but I think probably the most practical impact will be if an employer and an employee decide to part ways. And the employee is willing to make some sort of a payment for a clean break, but actually they want to preserve their reputation.

Because I think that you are not going to be able, as we know already, you can't have a non-disclosure agreement with regard to whistleblowing law. You know, you carve that out. From any sort of non-disclosure thing. You, know, you would say under a settlement agreement that this doesn't compromise your right to raise a public interest disclosure.

Rebecca Cairney: Yeah.

Mark Landon: And, you know, you can see an employer going, well, you know, what am I paying more than I would normally pay by way of compensation if I can't actually protect my reputation? Because, you know, I may genuinely not think there has been sexual harassment. I might, however, reckon that in these days of trial by social media, in particular, it doesn't really matter. If the allegation is made, that will do me reputational harm, and that's what I want to compromise. That's what I want to stop.
But of course, if sexual harassment is much more likely to fall within the whistleblowing provisions, actually it becomes very hard to actually, exclude the risk that having reached a settlement, having paid a sum of money, the person might not go off anyway and tell the world that actually I left having been harassed, in my view. And there's not a lot that the employer can do about it. So I think…
we're going to have to think very much more carefully about the terms of settlement agreements, and I think that employers are going to have to be realistic about the limitations on which you can impose any sort of non-disclosure, you know, it is going to be very case-specific, isn't it? Let's be honest with this. 

And an awful lot of this does come down to who, on balance of probabilities, you believe. If you investigate an allegation of sexual harassment, it's often one person's word against another, because a genuine harasser is unlikely to commit an act of sexual harassment in front of witnesses.

I think where you might see it more is things like banter in the workplace, you know, inappropriate, where someone says, well, actually, I feel embarrassed or humiliated, etc.

Again, would that become and you could see that being whistleblowing if somebody said, look, the trouble is there's a real laddish culture on the factory floor in the workplace. It's not a very good environment for women to work in. That would be something of public interest.

So I think, you know, I think, essentially, if I am a manager, and someone raises sexual harassment to my mind now, you've got to be alive to the fact that there is a much better chance that it would be recognised as falling within the whistleblowing protection.

Rebecca Cairney: Yeah, no, absolutely understood. I think that's really important for people to understand, isn't it, going forwards?

And so, I suppose on that basis then, so, what can employers do to try and reduce the risk of facing whistleblowing claims? Because we discussed on our last podcast, you know, the impact of, the Employment Act in general, and the delays in the tribunals and stuff, and the amount the sheer volume of claims. You know, what is it that employers can do, do you think, to kind of practically try and reduce that risk of facing these types of claims?

Mark Landon: Well, I think the single most important one is implement a whistleblowing policy, which sets out a very clear, accessible procedure by which staff can confidentially report concerns about illegal, unethical, or otherwise unacceptable conduct.

And you've also got to make sure that that policy enables the worker to bypass the level of management at which the problem may exist. So, if you've got a really good policy, it's well advertised, people are confident in using it, then, in a sense, they should never need to raise a concern externally. 

And so… and it's not just a big publication and a big, you know, fanfare and launched the once. I think this is something you've got to regularly remind people about. I think you've also got to, train managers and staff to know what to do if they receive a complaint of this nature.

Because I think what genuinely happens a lot, is that very often something that probably is of public interest sort of goes slightly under the radar for a while. You know, it's not really raising a red flag internally, and I think it's really important that managers, learn to recognise where something may suggest there is a more systemic problem and react accordingly, so a prompt investigation involving the right people, seeking guidance if you have an internal HR team, or if not, an external guidance.

But as with all of these things. the most important thing is culture. If you can develop a culture where staff feel that they are safe in making disclosures, they know who to go to, they're confident there won't be any retribution.

Well, it goes right back to our first comment about why whistleblowing's important. You want staff to flag up problems, because you want to put them right.

And so, you know, proper policy,  properly cascaded, proper training, and actually doing your level best to ensure that there is a genuine culture of confidence that if people raise valid concerns, they will be looked at, and it's not going to harm your career for having raised it.

Rebecca Cairney: Yeah.

Brilliant.

Okay, well, that's really great. Thanks, Mark. Good update. And thank you, everybody, for listening again. If you do need any assistance at all with anything Employment law or HR related, then please either contact myself on Rebecca.cairney@weightmans.com, or Mark at, mark.landon@weightmans.com

Thanks again, Mark. I think that's a really helpful and useful update.

Mark Landon: It's a pleasure.