In October 2024 a new, positive obligation on employers to take reasonable steps to protect their employees and workers from sexual harassment came into force. If an individual succeeds in a sexual harassment claim and demonstrates that their employer breached its preventative obligation, Employment Tribunals will have the power to increase compensation for sexual harassment by up to 25%. The Equality and Human Rights Commission (EHRC) will also have the power to take enforcement action against the employer.
The EHRC has published guidance for employers on the steps they can take to prevent harassment in the workplace. This includes suggesting a range of different policies and procedures that they can develop and adopt. Please see our previous article on this here. However, notably absent from the recommendations is a whistleblowing procedure, which clearly signposts how employees can make reports.
Whistle-blowers can be key in highlighting sexual harassment within an organisation because the individuals personally experiencing sexual harassment can often be reluctant to report it, particularly where the individual harassing them is someone senior within the business who holds significant influence. Individuals are concerned about retaliation, the impact on their career and also not being believed. Whistle-blowers in key functions (such as HR and in-house legal teams) may be best-placed to identify serial perpetrators or other patterns such as frequent use of NDAs to avoid investigating complaints or dealing frankly with senior perpetrators. Unfortunately, even now, several years after the #MeToo scandal broke, such practices are regrettably widespread.
Having a whistleblowing procedure which specifically deals with reporting sexual harassment is one way that an organisation can signal to its employees that it has a zero tolerance policy on sexual harassment and that employees are encouraged to report it where they see it happening. In this way, the existence of the procedure may in itself help to reduce sexual harassment. It may also help to ensure that sexual harassment is taken seriously as a compliance and risk issue, rather than being treated solely as an employee relations matter.
However, employers should take care to ensure that whistleblowing policies are fit for purpose and set clear expectations for those who submit reports. Whistle-blowers often assume that they will be notified of the outcome of an investigation (in the same way as they would if they had submitted a grievance). However, this tends not to happen in practice and whistle-blowers can become frustrated and create additional work for employers' HR and in-house legal teams. Setting clear expectations from the beginning manages employees' expectations and avoids alienating them.
With prospective employees increasingly considering the culture and ethics of a business before applying for a role, and the changes to the law which require employers to take reasonable steps to prevent sexual harassment, developing a whistleblowing procedure which specifically deals with reporting sexual harassment, will also help businesses attract and retain talent while also reducing the risk of expensive and time-consuming employment tribunal litigation.
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