Blowing the whistle on sexual harassment - ERA 2025

Introduction

Employees and workers assume they are protected whistleblowers, when a close reading of the Employment Rights Act 1996 (ERA 1996) confirms their disclosure of wrongdoing does not satisfy the various conditions necessary. This is a precise and technical area governed by Part IVA ERA 1996.

When a disclosure is protected, the person making it acquires the right not to suffer a detriment or be dismissed because of it. It is a valuable protection with no cap on the compensation an Employment Tribunal may award for failure to protect these rights.

What is a qualifying disclosure?

To be protected the disclosure must first be a qualifying disclosure. This means the person must reasonably believe their disclosure is about one or more of the categories of wrongdoing listed in section 43B ERA 1996.

Not only must the disclosure concern one of these categories of wrongdoing but the person making the disclosure must also reasonably believe that it is in the public interest to do so. Public interest generally covers possible impact on other colleagues or members of the public but it depends on the circumstances.

It is worth noting that the disclosure need not be limited to conduct suffered by the person making it but can concern conduct suffered by others.

Sexual harassment

As of 6 April 2026, Employment Rights Act 2025 has extended the list of wrongdoing to include sexual harassment.

The definition of sexual harassment is the definition contained in section 26(2) Equality Act 2010 which provides that A harasses B if A engages in unwanted conduct of a sexual nature and the conduct has the purpose or effect of violating B’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

ACAS provides the following examples:-

• 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 – for example, images generated by artificial intelligence (AI)

• touching someone against their will, for example hugging them

• sexual assault or rape

General office banter, such as the sharing of sexual images, can amount to sexual harassment.

Disclosure to whom?

Depending on the circumstances the disclosure must be made to one of several persons/office holders identified in Part IV ERA 1996, including but not limited to an employer. A disclosure that is not made to one of these is not protected.

Earlier amendment to Equality Act 2010

This change to the whistleblowing legislation follows an amendment to the Equality Act 2010 that came into force on 26 October 2024. It gave employers a new duty to take reasonable steps to prevent sexual harassment in the workplace. In cases where sexual harassment is established a failure by the employer to prevent it may lead to an uplift in compensation of as much as 25%.

Policies and training

Employers will have reviewed their harassment policy following the October 2024 amendment, and it is important that they review it again now that sexual harassment is covered by the whistleblowing provisions. They will also want to review their grievance and whistleblowing policies and make sure all relevant policies are aligned.

Training is also likely to be necessary.

Points to consider

1. Have you reviewed your policies to incorporate the whistleblowing change?

2. Do you need to provide training to your employees and workers?

Mariel Irvine

16 April 2026