But no answers from the ministry on plans to cost and scope the establishment of an Office of the Whistleblower

The Department for Business and Trade is changing the law to strengthen the right of people to report sexual harassment at work by making it a protective disclosure under whistleblowing legislation.

Bizarrely this measure was missed by mainstream media when the bill was published last month with most of the coverage being devoted to the measure improving employees rights in the job market and repealing some of the Tory legislation restricting trade union actions.

But there is a section of the new bill devoted to strengthening the rights of people who suffer sexual harassment at work. It proposes a three pronged attack to change the current law.

First it is strengthening the duty of employers to do something about the issue by amending the Equality Act to say they must take ” all reasonable steps ” to stop it happening.

This change has already been noted by lawyers who take up sexual harassment cases since it significantly reduces the wriggle room for employers to get out of any responsibility.

The new bill spells out what specific actions employers should take and will be further covered in regulations to be issued by ministers. These include carrying out assessments to deal with sexual harassment, publishing company policy, and drawing up reporting and complaints procedures.

The definition of sexual harassment is also extended to say “that sexual harassment has occurred, is occurring or is likely to occur“. ( my bold emphasis)

The second big change is that employers would have to act if a third party is sexually harassing their employee opening up the ground to take action if there are subject to unwanted sexually offensive social media attacks or customers are sexually harassing their employees.

The final big change is to incorporate reporting of sexual harassment as a protected statement under whistleblowing legislation by amending the 1996 Employment Relations Act so it is covered by PIDA.

A Department for Business and Trade spokesperson said:

“We’re committed to making workplace rights fit for the modern workplace and that’s why the Employment Rights Bill will strengthen whistleblowing protections, including women who report sexual harassment at work.

“We encourage workers to speak up about wrongdoings to their employer or a regulator and we will ensure they’re protected if they’ve been dismissed or treated unfairly for doing so.” 

There is a really good blog on sexual harassment changes in the law, including some prior to the new bill, by Mandy Bhattal, a senior solicitor at Leigh Day. The link is here.

While this is good news, especially for women, there are certain caveats to be made. The main one is that if a person ends up being dismissed or feels she has to leave her job, the case is likely to go to the employment tribunal system. It is fact that some male employment judges appear to be patronising and offensive towards women. I am thinking of the way judge Philip Lancaster treated whistleblower Alison . McDermott, during her case involving Sellafield. Eight women have complained about they way he treated them in different cases.

Nasty playbooks by barristers at employment tribunals

Secondly there is a rather nasty playbook used by barristers and solicitors engaged by employers to deal with whistleblowers at employment tribunals. They discredit them by bringing up other matters unrelated to the whistleblowing issue. This includes suggesting the person is a bully or cannot work with their colleagues. I fear a new playbook being invented to present the woman as a flirt or leading men on to undermine her case.

Indeed looking at the bill altogether employment tribunals are going to be central to the implementation of the new laws and safeguards for workers – increasing the need for their procedures to be reformed as I have said before.

Office of Whistleblower silence

Last week Baroness Jones of Whitchurch, the new junior minister at the Department for Business and Trade, took peers by surprise, by suddenly announcing the ministry was evaluating whether to set up a new Office of the Whistleblower, a demand long pressed by Whistleblowers UK, headed by Georgina Halford Hall. Their site is https://www.wbuk.org . WBUK is also doing a national survey of whistleblowers experience and perceptions which will lead to a detailed report to develop proposed improvements to the UK Whistleblowing Framework. The link for the survey is here .

She told peers in answer to a question from Liberal Democrat Baroness Kramer:” With regard to an office for the whistleblower, there are a number of ideas around this. We are looking at the role and remit that such a body could have. There will be a need to look at the cost, role and function of a potential new body, but we are looking at all the ways we can ensure that whistleblowers are protected at the workplace, as they should be. “

Baroness Kramer had previously promoted a bill to create such an office.

Baroness Jones also gave an answer to hereditary peer, Lord Cromwell, on non-disclosure agreements.

She told him “We have already noted the concerns about the misuse of non-disclosure agreements. We share his concern, because they are being used to silence whistleblowers and cover up sexual harassment and discrimination. I stress that there are existing legal limits to how NDAs can be used in an employment context, which means they are void and unenforceable in certain circumstances. The use of NDAs is not something we would support and, if there were ways of limiting it, we would do so.”

I contacted the ministry’s press office about Baroness’s Jones remarks. I asked them for the timetable for reviewing the need for an Office of the Whistleblower, whether there was a plan for a consultation paper on the idea and when such a review would report.

Answer came there none, it was completely ignored and instead I was told about the new measures affecting sexual harassment.

I am rather surprised. Either Baroness Jones had gone off piste or the civil servants at the ministry aren’t keen on this. I don’t believe she would have risked making such a statement which is reported in Hansard and is now permanently on the record. So we have a mystery. I am sure campaigners will follow this up.