Sexual harassment, whistleblowing, and the Employment Rights Act 2025

On 6 April 2026, section 24 of the Employment Rights Act 2025 came into force, introducing a new category of protected disclosure where "sexual harassment has occurred, is occurring or is likely to occur". This article examines what the law requires, how best to support employees, and the practical steps organisations should now take.

What constitutes sexual harassment?

Sexual harassment is any conduct that is unwanted or unwelcome, and may occur through words, actions or behaviour. Examples include making suggestive comments, unwanted touching or other physical contact, staring, making sexual gestures, or showing or sharing explicit material.

Section 26 of the Equality Act 2010 provides that harassment may occur where conduct is unwanted, is of a sexual nature, and has the purpose of violating the dignity of the person being harassed, or creates an intimidating, hostile, degrading, humiliating or offensive environment for them.

Harassment can also arise where said unwanted conduct takes place, it has the effect described above, and the individual on the receiving end either rejects or submits to the conduct and is then treated less favourably as a result by the alleged harasser.

The employment tribunal, in determining whether harassment has occurred pursuant to the Equality Act 2010, will consider the perception of the person experiencing the conduct, the wider circumstances of the matter, and whether it was reasonable for the conduct to have had the effect alleged.

Sexual harassment may also fall within the Protection from Harassment Act 1997, which requires a course of conduct amounting to harassment that the alleged harasser either knew, or ought to have known, amounted to harassment. These cases are dealt with in the county court or High Court.

For the purposes of making a protected disclosure, either definition - or information tending to show that sexual harassment is likely to occur - will be sufficient to engage the statutory protection (subject to the presence of the other qualifying criteria).

Whistleblowing

Case law on protected disclosures (or “whistleblowing”) is complex, highly fact‑sensitive, and emanates exclusively from the employment tribunal and appellate courts. This complexity, combined with some of the reverse evidential burdens that aspects of these cases often carry, means whistleblowing claims can quickly become high risk for employers.

Whistleblowing cases can be document‑heavy, time‑intensive and carry significant reputational risk - even in claims where the employer ultimately succeeds. Like discrimination claims, they are one of the few categories of employment tribunal claim that do not attract any statutory cap on damages. Further sections of the Employment Rights Act 2025 will be implemented in January 2027, expanding the landscape for uncapped damages further still.

Whilst statistically only around 1% of cases succeed at a tribunal hearing, many will be resolved through expensive out of court settlements. These cases have the potential to attract multi‑million pound awards, particularly where the alleged detrimental treatment has been extreme and career-ending. High profile matters may have attracted press attention long before this stage, exposing an organisation to unwelcome scrutiny and potential reputational harm.

The best way to safeguard against such issues - and to ensure there is an effective feedback loop to address concerns raised - is to have robust policies and processes in place to act on disclosures and to ensure that any worker raising a concern is appropriately supported.

What is a protected disclosure?

Whilst sexual harassment might previously have been a qualifying disclosure under some of the previously existing categories under section 43B Public Interest Disclosure Act 1998, the law now expressly provides it is a disclosure in its own right. For a disclosure to be a qualifying disclosure, a worker - a category that includes individuals beyond those in a traditional employer-employee relationship as defined under section 43K - must satisfy section 43B as follows:

• The worker must disclose information which, in the worker's reasonable belief, tends to show sexual harassment has occurred, is occurring, or is likely to occur. The disclosure must contain sufficient factual content (Kilraine v London Borough of Wandsworth (2018)). That said, given the duty under the Equality Act 2010 to take reasonable steps to prevent sexual harassment - a duty that will be strengthed in October 2026 to require employers to take all reasonable steps - it is advisable to investigate any allegation of sexual harassment, no matter how vague.
  
  
• The disclosure must be made to the worker's employer or, where the alleged failing is attributable to a third party or for whom someone a third party has responsibility, to that third party. An "employer" could be a member of HR, a direct line manager, or arguably any manager depending on the organisation's structure.
  
  
• The worker may also make the disclosure to a prescribed person such as a regulator, however, not all regulators are prescribed persons, e.g. the Solicitors Regulation Authority (SRA) is not. It does, however, prohibit detrimental treatment under its Code of Conduct.
  
  
• The worker must have a reasonable belief in the disclosure. The belief does not need to be correct, however.
  
  
• The disclosure must be in the public interest. Chesterton Global Ltd v Nurmohamed (2017) provided that a disclosure can still be in the public interest even if it relates to a breach of the worker's own contract of employment. A disclosure is more likely to be in the public interest if it affects a larger number of people, if the issue pertains to significant and/or deliberate wrongdoing, and if the alleged wrongdoer is a substantial entity.

What is detrimental treatment?

Section 47B Employment Rights Act 1996 provides that a "worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure". This protection also extends to acts or deliberate failures to act by other employees, or by any agent of the employer acting with the employer's authority. Importantly, it does not matter if the employer does not know or approve of the conduct in question, although the employer will have a defence if it can show it took all reasonable steps to prevent such acts or deliberate failures.

Detriments can take many forms. They may include bullying, ostracisation, exclusion, suspension, disciplinary action, demotion, denial of promotions or training, a reduction in hours, other contractual or role changes, or reputational smears. Subtler and less obvious treatment may also qualify if they reach a threshold of what a reasonable worker would consider to be a detriment. A deliberate failure to investigate the protected disclosure can itself amount to a detriment.

It is therefore extremely important to ensure that disclosures are acted upon promptly and handled with care. Disclosures should be investigated fully, fairly and with sensitivity to all concerned. Workers making disclosures should be appropriately supported, and clear channels should exist for reporting any subsequent detrimental treatment, victimisation or harassment. Any such complaints must be addressed swiftly, as the treatment complained of could constitute both a detriment and a further protected disclosure in its own right under one of the alternative categories at section 43B Public Interest Disclosure Act 1998.

For a whistleblowing detriment claim to succeed, the worker need only establish that the protected disclosure materially influenced any subsequent detrimental treatment, i.e. that the disclosure was more than a trivial influence. The disclosure need not be the sole reason. Where a worker is dismissed, section 103A Employment Rights Act 1996 provides that the dismissal will be automatically unfair if the protected disclosure was the principal reason for the dismissal - a much higher bar.

In dismissal cases, tribunals will examine whether whistleblowing was the “hidden reason” behind a dismissal presented as being for a different, ostensibly fair reason, as established by the Supreme Court in Royal Mail Group Ltd v Jhuti (2019). Employers should therefore ensure that documentation is carefully preserved as this will assist where there is a genuine, non‑whistleblowing related reason for any dismissal or other action that might otherwise be construed as a detriment. Such evidence will be critical in establishing a causation defence.

Individuals whom the worker considers to be at fault may also be personally liable for whistleblowing detriment, as confirmed in Timis & Another v Osipov & Another (2018), so thought should be given to reputation management, potential conflicts of interest, and the need for separate representation where interests may diverge. It should also be borne in mind that the Civil Liability (Contribution) Act 1978 does not apply to employment tribunal proceedings (Sunderland City Council v Brennan (2011)).

An employee may further bring a claim for post‑termination detriment where the treatment is closely connected to the employment relationship or dispute, as seen in Day v Lewisham & Greenwich NHS Trust (2025). Employers should therefore remain alert to potential ongoing liability, particularly where the alleged harasser or relevant individuals remain in employment.

Practical tips

• Ensure training is comprehensive, tailored to your organisation, updated and delivered regularly to all staff. Those who may receive protected disclosures must understand how to handle and escalate concerns appropriately.
  
  
• Maintain a clear and robust anti-sexual harassment policy which outlines unacceptable behaviours and their consequences. Alongside this, ensure you have a well-signposted whistleblowing policy with options for anonymous reporting. Make clear that any worker who subjects a whistleblower to a detriment will face consequences. Consider displaying reporting procedures on staff noticeboards and ensure remote workers know where to access this information.
  
  
• Carry out specific risk assessments, particularly for lone working, client-facing roles, work with external suppliers, and for all events - especially those involving alcohol.
  
  
• Review vetting processes for third party suppliers to ensure they are sufficiently robust for the nature of your business.
  
  
• Deploy anonymous staff surveys at least annually to identify issues early. Pay close attention to themes emerging from exit interviews, including any perceived failures to act upon concerns or discomfort over raising concerns.
  
  
• Foster an open culture where staff feel safe raising concerns, and ensure they are supported throughout the process. This reduces the risk of psychiatric injury and the likelihood of escalation into legal action.
  
  
• Apply a zero tolerance approach to proven allegations of sexual harassment, regardless of the alleged harasser’s seniority.
  
  
• Provide reporting mechanisms for third parties, including contractors, agency workers, clients and visitors - with the option to report anonymously where appropriate.
  
  
• Investigate all protected disclosures carefully and thoroughly. As best practice, treat any allegation of sexual harassment - even if it may fall short of a qualifying disclosure - with the same seriousness.
  
  
• Consider appointing an external investigator where there may be a power imbalance, where witnesses may feel inhibited, or where the organisation is small and any would be internal investigator works closely with the parties involved.
  
  
• Provide full support to the individual making the disclosure. Depending on organisational size, consider whether external counselling or additional support may be appropriate, and whether your employee assistance programme is sufficient.
  
  
• Take proactive steps to reduce the risk of psychiatric injury, whether arising from the harassment itself or from any inadvertent failure to handle the disclosure appropriately.
  
  
• Offer appropriate support to the alleged harasser, and ensure confidentiality for all parties is preserved throughout.
  
  
• Consider when external reporting to regulators may be appropriate, both to protect workers and to comply with regulatory duties.
  
  
• Where a claim is presented or anticipated, early consideration should be given as to which individuals may be covered by any relevant insurance, and whether conflicts of interest are likely to arise. Put appropriate arrangements in place to manage these.
  
  
• Review your organisation’s insurance arrangements to ensure you are adequately insured for whistleblowing, harassment and employment‑related claims. Check the scope and limits of cover, any exclusions, and whether additional protection is required. Be mindful that not all individuals will fall within the scope of directors’ & officers’ (D&O) insurance, meaning some managers or decision‑makers may not be personally protected if named in detriment or harassment claims. Organisations should ensure that any gaps in cover are identified and addressed proactively.
  
  
• Include indemnity and conduct clauses in contracts with third party suppliers so that, where harassment by third party staff occurs, your organisation can seek to recover losses arising from their conduct.
  
  
• Employees can apply for interim relief if they believe they were dismissed for whistleblowing. If granted, they may be reinstated or re‑engaged; if not possible, they may receive ongoing salary and contractual benefits until the final hearing - sums which are not repayable even if the claim ultimately fails. Given the significant tribunal backlogs, this can expose employers to a substantial non-repayable liability over several years.
  
  
• Be aware that the new protected disclosure category taking effect on 6 April 2026 may apply to disclosures made before that date, where the detrimental treatment occurs on or after 6 April 2026. Employers should therefore review any historic concerns or complaints where there may be a risk of post‑implementation detriment.
  
  
• From October 2026, employers will be under a strengthened duty to take all reasonable steps to prevent sexual harassment by third parties, including clients, customers, contractors and suppliers.
  
  
• From 1 January 2027, compensation for ordinary unfair dismissal will become uncapped where the effective date of termination date falls on or after that date. The qualifying period for ordinary unfair dismissal will be reduced from two years' continuous employment to six months. For organisations managing persistent or high-risk behavioural issues - particularly involving senior or high‑earning individuals - careful and lawful consideration may need to be given to whether an exit should be explored before the uncapped regime takes effect.

How we can help

If you would like support reviewing or updating your organisation’s policies, procedures or training frameworks in light of these changes, please get in touch. We can assist with any matters causing concern, policy drafting, risk assessments, investigation processes and wider cultural or governance reviews to ensure your organisation is compliant, protected and prepared.

The information in this article is correct at the time of writing. It is intended as general guidance and should not be treated as legal advice. Every situation turns on its own facts, and tailored advice should be sought before taking any action.

Munro Advisory LLP (OC459151) is not a regulated law firm and does not provide reserved legal services.