*/
The ‘non-party political’ employment silk advising Labour talks to Stephanie Hayward about employer failure to tackle workplace sexual harassment and the urgent need to reinvent whistleblowing culture
‘There’s a sense that this is a moment to make some change,’ says Marina Wheeler KC when I ask what she hopes to achieve as an adviser to Labour on workplace sexual harassment. Contrary to reports, she is not a whistleblowing ‘tsar’, Marina asserts, adding that the spin didn’t come from her, and it didn’t come from Labour. Self-described as ‘studiedly non-party political’ she assesses things on merit and sees who’s making sense. ‘Whatever anybody else wants to make of it,’ she says, ‘that’s sort of up to them.’
We meet at Marina’s chambers, 1 Crown Office Row. She greets me, warmly, then suggests holding the interview in Chambers’ annexe on the other side of Temple. As we wander through Middle Temple Gardens, people are gathering in the late afternoon sunshine and magnolia laces the light in a scene that signals Spring may, at last, be springing. We climb several floors to a conference room offering a large, gleaming table, shelves filled with case-reports, and a vista that feels conducive to a discussion on proposals for law reform.
‘Emily [Thornberry, as Shadow Attorney General] has a host of issues she wants to address,’ she begins, ‘and three in particular… one of them is whether whistleblowing can be used to provide an additional route to address sexual harassment at work.’ The other two are cohabitation and stalking. Marina’s focus has been on sexual harassment.
Despite numerous reports and studies, as well as #MeToo, ‘the figures aren’t showing significant improvement,’ she says. ‘We’ve got to do something more or do something different.’ Last year’s report into sexual misconduct among surgeons provided ‘a jolt’ (Begeny et al, 2023). The research found that two-thirds of women (63.3%) in the surgical workforce had been the target of sexual harassment from colleagues. Marina relays some of the study’s graphic narrative including ‘senior male consultant surgeons sexually assaulting younger women surgeons just at the moment before they’re going into surgery’. She adds: ‘All of that was quite shocking.’
While the Equality Act 2010 and whistleblowing legislation protect against workplace sexual harassment, their enforcement over relies on individuals to bring claims. ‘The financial burden and the emotional burden mean that very few will go through that process,’ she says.
Even before that, making a complaint to an employer is difficult. Why is that? ‘Two reasons,’ she offers. ‘So often, [women] find themselves on the receiving end of victimisation or retribution. It is extraordinary how that pattern works – how once you raise a formal complaint... overwhelmingly [you] will be leaving the organisation within a period of time.’ The other reason, she says, is ‘a lack of faith that the complaint will be adequately addressed’.
I ask if employer failure to tackle sexual harassment is the reason for the Worker Protection (Amendment of Equality Act 2010) Act 2023 coming into force. From October, employers must take reasonable steps to prevent sexual harassment of their employees. Have organisations been doing nothing? ‘That duty,’ she says, is the ‘more preventive move’ she seeks to harness. She wants to relieve the burden on individuals.
Her proposal will highlight the availability of whistleblowing. She explains that whistleblowing ‘allows others who are aware of something systemic within an organisation but haven’t necessarily experienced the [sexual harassment] themselves’ to raise a concern. Marina has in mind a situation where there’s a single perpetrator everyone knows about. ‘In quite a lot of organisations there’s a kind of “whispery thing” where everybody knows not to get in the lift, or whatever, with that particular person but no individual is willing to make a formal complaint.’ She continues: ‘This happens because of a power imbalance… so we are talking about the victims usually being younger, junior women.’ Her proposal is aimed towards people in senior positions, men, or women, though not exclusively.
Protection for whistleblowing was introduced by the Public Interest Disclosure Act 1998 (PIDA) amending the Employment Rights Act 1996 (ERA). PIDA protects individuals against adverse treatment by their employers on the grounds of a protected disclosure. A protected disclosure is a disclosure of information made in the public interest that tends to show wrongdoing has occurred. Wrongdoing is defined under s 43B ERA and includes, for example, the commission of a criminal offence or a miscarriage of justice. The disclosure must be made to a person at s 43C-H ERA starting with the discloser’s employer. Section 43 ERA follows a three-tier structure meaning that the further from an employer a disclosure is made – to the press, for instance – the more the discloser must prove.
Marina acknowledges that sexual harassment technically comes within s 43B ERA as a breach of a legal obligation or health and safety concern. ‘But people don’t know that,’ she says. ‘It’s underused.’ Lack of use might be because, traditionally, sexual harassment has been viewed as an individual issue directed through grievance processes. How will the public interest test be met? Marina refers to the Chesterton criteria then explains: ‘If it’s serious enough or prevalent or taking place within an organisation that’s a reputable public body then that may – or it is arguable would – satisfy the public interest test.’ She adds: ‘I think the courts will be influenced by how society more widely seems to be responding to this problem.’ Last year, the Confederation of British Industry (CBI) faced a boycott by its members and the government when allegations of sexual misconduct, including rape, were reported in The Guardian. That shook the CBI to the core, I suggest. ‘Absolutely,’ she agrees. Marina tells me a live option is to add sexual harassment to the list of wrongdoing under s 43B ERA to ‘underline its importance’.
My reading for this interview included articles characterising whistleblowing as ‘parrhesia’ – an Ancient Greek concept – meaning ‘truthteller’. One reason why sexual harassment is underreported is because women fear they won’t be believed. Did this have any bearing on the proposal’s design?
‘That’s interesting,’ she replies, ‘I haven’t thought of it in terms of belief. I would imagine that’s more acute in what you do [criminal law].’ What’s struck her more is the failure by employers to adequately address a sexual harassment complaint: ‘It’s inconvenient, it causes trouble and there’s a lack of confidence as well in how to manage it.’
To tackle this, Marina discusses imposing positive legal duties on employers to investigate a protected disclosure and report back to the whistleblower. Under PIDA, there is no obligation on an employer to investigate alleged wrongdoing. Identified by pressure groups as the key problem with the law, she explains: ‘[The pressure groups] say, “Look, this is ridiculous.” You can go through all of this process, go through the courts having been dismissed and win, but there’s still no duty on the employer to look at the thing that you were complaining about at the beginning.’
It’s a concern shared by the All Party Parliamentary Group for Whistleblowing which, through the Whistleblowing Bill, seeks to abolish PIDA and create an Office of the Whistleblower with ‘real teeth’ encouraging organisations to act as soon as concerns are raised. ‘It feels to me it would be regressive to abolish [PIDA],’ Marina says. People do need a process to defend themselves against dismissal or detriment, but she agrees it’s not enough. Employers must listen to, and address, the underlying concern. This may require positive duties on employers to have in place whistleblowing processes, with confidential routes available, and timescales for responding to the whistleblower.
I suggest that whistleblowing culture should be more positive and Marina agrees: ‘It’s a tool of good corporate governance, it’s an early warning system that something’s going wrong in an organisation. So listen to what people are saying.’
That said, whistleblowing, she admits, inherently involves criticism of an organisation or colleagues. She recalls the decision in Kong where the claimant was dismissed ‘not because of the protected disclosure, not because the claimant drew attention to a defective system, but how she did it’. In that case, the Court of Appeal upheld the tribunal’s finding that Ms Kong’s conduct in making a protected disclosure – which involved criticising and upsetting her colleague – was separable from the protected disclosure itself, meaning her dismissal under PIDA was not automatically unfair. Campaigners criticised the decision as a ‘cop out’, Marina recalls.
The point is, there may be occasions when the manner in which an individual blows the whistle – for example, by being abusive or offensive – stops them benefiting from the protection under PIDA. When this will be, is not clear cut. It is fact specific. I wonder if this tension may become starker in the context of sexual misconduct where the mental and physical impacts are significant.
Given employer failure to address workplace sexual harassment, I ask if the three tiers should be repealed. Does PIDA’s structure penalise women who feel the only channel against corruption is the press? ‘Maybe,’ Marina replies, flatly. She refers to a body of opinion that says a tribunal should simply judge whether it was reasonable to have made the disclosure to a particular person, or newspaper. That reduces the legal hurdles, she says. I sense that if she did recommend this her rationale would be the layers of complexity that impinge upon access to justice. She says: ‘The more complicated the law, the more expensive, the more you have to have lawyers.’
Marina believes there’s a mass of disputes out there that efforts like mediation can help resolve. Mediators, she explains, can ‘home in on what’s really behind the dispute, what really matters to these two parties’ and is particularly important where there’s an ongoing relationship. Crucially, she says, the outcome is something the parties have chosen – an objective that’s sometimes lost in the thick of litigation.
As a barrister, Marina says ‘the fight’ can be ‘really extraordinary and satisfying’ but increasingly she finds herself thinking: ‘Is it me that’s enjoyed it a bit too much… and is it really in the interests of the client?’ Ultimately, she reflects, ‘it’s trying to give people back their cases, in a way, without undermining what all of us do.’
I ask about banning non-disclosure agreements (NDAs) – which stifle women speaking out about sexual misconduct – from the workplace. ‘There are women who want to be able to leave an employment under conditions of privacy... and rebuild their lives,’ she observes. But better safeguards are required. An NDA must refer to the right to whistleblow ‘in very basic, simple wording’ she says. Further, she believes employers should provide greater sums for women signing NDAs to access independent, legal advice. ‘There’s a guideline of £500,’ she says, ‘but you get [very little] for two hours. It’s not good enough.’
My time has overrun. There has been much to discuss including The Lost Homestead, Marina’s book, which falls beyond the scope of this piece. A Green Paper conveying Marina’s proposals is due later this Spring. Assuming there’s a Labour government, will they be implemented? ‘Hopefully,’ she says. Though, she admits, ‘my own influence over that is probably very small’, and, no doubt, the date of the awaited General Election.
Marina Wheeler KC (L) and Stephanie Hayward (R) pictured after the interview.
References
‘Sexual harassment, sexual assault and rape by colleagues in the surgical workforce, and how women and men are living different realities’, Begeny et al, British Journal of Surgery, Volume 110, Issue 11, November 2023
Chesterton Global Ltd v Mohamed Nurmohamed, Public Concern at Work (intervener) [2017] EWCA Civ 979
‘Women Whistleblowers: Examining parrhesia, power and gender with Sophocles’ Antigone’, Kate Kenny and Mahaut Fanchini, Organization Studies, Vol 45 Issue 2, June 2023
‘Revealed: new claims of sexual misconduct and “toxic culture” at CBI’, Anna Isaac, The Guardian, 3 April 2023
Kong (appellant) v Gulf International Bank (UK) Ltd (respondent) [2022] EWCA Civ 941
The Lost Homestead: My Mother, Partition and the Punjab, Marina Wheeler, (Hodder & Stoughton)
Stephanie Hayward is a criminal barrister at Deka Chambers. She leads Behind the Gown – an organisation spotlighting gender inequality and abuse of power – which was instrumental in shaping Sanctions Guidance for sexual misconduct, discrimination and bullying at the Bar. In 2019, Stephanie released a film to highlight the attrition of women barristers and mark 100 years of women at the Bar. She has recorded interviews with high-profile figures including playwright Suzie Miller (Prima Facie) and Jess Phillips MP.
‘There’s a sense that this is a moment to make some change,’ says Marina Wheeler KC when I ask what she hopes to achieve as an adviser to Labour on workplace sexual harassment. Contrary to reports, she is not a whistleblowing ‘tsar’, Marina asserts, adding that the spin didn’t come from her, and it didn’t come from Labour. Self-described as ‘studiedly non-party political’ she assesses things on merit and sees who’s making sense. ‘Whatever anybody else wants to make of it,’ she says, ‘that’s sort of up to them.’
We meet at Marina’s chambers, 1 Crown Office Row. She greets me, warmly, then suggests holding the interview in Chambers’ annexe on the other side of Temple. As we wander through Middle Temple Gardens, people are gathering in the late afternoon sunshine and magnolia laces the light in a scene that signals Spring may, at last, be springing. We climb several floors to a conference room offering a large, gleaming table, shelves filled with case-reports, and a vista that feels conducive to a discussion on proposals for law reform.
‘Emily [Thornberry, as Shadow Attorney General] has a host of issues she wants to address,’ she begins, ‘and three in particular… one of them is whether whistleblowing can be used to provide an additional route to address sexual harassment at work.’ The other two are cohabitation and stalking. Marina’s focus has been on sexual harassment.
Despite numerous reports and studies, as well as #MeToo, ‘the figures aren’t showing significant improvement,’ she says. ‘We’ve got to do something more or do something different.’ Last year’s report into sexual misconduct among surgeons provided ‘a jolt’ (Begeny et al, 2023). The research found that two-thirds of women (63.3%) in the surgical workforce had been the target of sexual harassment from colleagues. Marina relays some of the study’s graphic narrative including ‘senior male consultant surgeons sexually assaulting younger women surgeons just at the moment before they’re going into surgery’. She adds: ‘All of that was quite shocking.’
While the Equality Act 2010 and whistleblowing legislation protect against workplace sexual harassment, their enforcement over relies on individuals to bring claims. ‘The financial burden and the emotional burden mean that very few will go through that process,’ she says.
Even before that, making a complaint to an employer is difficult. Why is that? ‘Two reasons,’ she offers. ‘So often, [women] find themselves on the receiving end of victimisation or retribution. It is extraordinary how that pattern works – how once you raise a formal complaint... overwhelmingly [you] will be leaving the organisation within a period of time.’ The other reason, she says, is ‘a lack of faith that the complaint will be adequately addressed’.
I ask if employer failure to tackle sexual harassment is the reason for the Worker Protection (Amendment of Equality Act 2010) Act 2023 coming into force. From October, employers must take reasonable steps to prevent sexual harassment of their employees. Have organisations been doing nothing? ‘That duty,’ she says, is the ‘more preventive move’ she seeks to harness. She wants to relieve the burden on individuals.
Her proposal will highlight the availability of whistleblowing. She explains that whistleblowing ‘allows others who are aware of something systemic within an organisation but haven’t necessarily experienced the [sexual harassment] themselves’ to raise a concern. Marina has in mind a situation where there’s a single perpetrator everyone knows about. ‘In quite a lot of organisations there’s a kind of “whispery thing” where everybody knows not to get in the lift, or whatever, with that particular person but no individual is willing to make a formal complaint.’ She continues: ‘This happens because of a power imbalance… so we are talking about the victims usually being younger, junior women.’ Her proposal is aimed towards people in senior positions, men, or women, though not exclusively.
Protection for whistleblowing was introduced by the Public Interest Disclosure Act 1998 (PIDA) amending the Employment Rights Act 1996 (ERA). PIDA protects individuals against adverse treatment by their employers on the grounds of a protected disclosure. A protected disclosure is a disclosure of information made in the public interest that tends to show wrongdoing has occurred. Wrongdoing is defined under s 43B ERA and includes, for example, the commission of a criminal offence or a miscarriage of justice. The disclosure must be made to a person at s 43C-H ERA starting with the discloser’s employer. Section 43 ERA follows a three-tier structure meaning that the further from an employer a disclosure is made – to the press, for instance – the more the discloser must prove.
Marina acknowledges that sexual harassment technically comes within s 43B ERA as a breach of a legal obligation or health and safety concern. ‘But people don’t know that,’ she says. ‘It’s underused.’ Lack of use might be because, traditionally, sexual harassment has been viewed as an individual issue directed through grievance processes. How will the public interest test be met? Marina refers to the Chesterton criteria then explains: ‘If it’s serious enough or prevalent or taking place within an organisation that’s a reputable public body then that may – or it is arguable would – satisfy the public interest test.’ She adds: ‘I think the courts will be influenced by how society more widely seems to be responding to this problem.’ Last year, the Confederation of British Industry (CBI) faced a boycott by its members and the government when allegations of sexual misconduct, including rape, were reported in The Guardian. That shook the CBI to the core, I suggest. ‘Absolutely,’ she agrees. Marina tells me a live option is to add sexual harassment to the list of wrongdoing under s 43B ERA to ‘underline its importance’.
My reading for this interview included articles characterising whistleblowing as ‘parrhesia’ – an Ancient Greek concept – meaning ‘truthteller’. One reason why sexual harassment is underreported is because women fear they won’t be believed. Did this have any bearing on the proposal’s design?
‘That’s interesting,’ she replies, ‘I haven’t thought of it in terms of belief. I would imagine that’s more acute in what you do [criminal law].’ What’s struck her more is the failure by employers to adequately address a sexual harassment complaint: ‘It’s inconvenient, it causes trouble and there’s a lack of confidence as well in how to manage it.’
To tackle this, Marina discusses imposing positive legal duties on employers to investigate a protected disclosure and report back to the whistleblower. Under PIDA, there is no obligation on an employer to investigate alleged wrongdoing. Identified by pressure groups as the key problem with the law, she explains: ‘[The pressure groups] say, “Look, this is ridiculous.” You can go through all of this process, go through the courts having been dismissed and win, but there’s still no duty on the employer to look at the thing that you were complaining about at the beginning.’
It’s a concern shared by the All Party Parliamentary Group for Whistleblowing which, through the Whistleblowing Bill, seeks to abolish PIDA and create an Office of the Whistleblower with ‘real teeth’ encouraging organisations to act as soon as concerns are raised. ‘It feels to me it would be regressive to abolish [PIDA],’ Marina says. People do need a process to defend themselves against dismissal or detriment, but she agrees it’s not enough. Employers must listen to, and address, the underlying concern. This may require positive duties on employers to have in place whistleblowing processes, with confidential routes available, and timescales for responding to the whistleblower.
I suggest that whistleblowing culture should be more positive and Marina agrees: ‘It’s a tool of good corporate governance, it’s an early warning system that something’s going wrong in an organisation. So listen to what people are saying.’
That said, whistleblowing, she admits, inherently involves criticism of an organisation or colleagues. She recalls the decision in Kong where the claimant was dismissed ‘not because of the protected disclosure, not because the claimant drew attention to a defective system, but how she did it’. In that case, the Court of Appeal upheld the tribunal’s finding that Ms Kong’s conduct in making a protected disclosure – which involved criticising and upsetting her colleague – was separable from the protected disclosure itself, meaning her dismissal under PIDA was not automatically unfair. Campaigners criticised the decision as a ‘cop out’, Marina recalls.
The point is, there may be occasions when the manner in which an individual blows the whistle – for example, by being abusive or offensive – stops them benefiting from the protection under PIDA. When this will be, is not clear cut. It is fact specific. I wonder if this tension may become starker in the context of sexual misconduct where the mental and physical impacts are significant.
Given employer failure to address workplace sexual harassment, I ask if the three tiers should be repealed. Does PIDA’s structure penalise women who feel the only channel against corruption is the press? ‘Maybe,’ Marina replies, flatly. She refers to a body of opinion that says a tribunal should simply judge whether it was reasonable to have made the disclosure to a particular person, or newspaper. That reduces the legal hurdles, she says. I sense that if she did recommend this her rationale would be the layers of complexity that impinge upon access to justice. She says: ‘The more complicated the law, the more expensive, the more you have to have lawyers.’
Marina believes there’s a mass of disputes out there that efforts like mediation can help resolve. Mediators, she explains, can ‘home in on what’s really behind the dispute, what really matters to these two parties’ and is particularly important where there’s an ongoing relationship. Crucially, she says, the outcome is something the parties have chosen – an objective that’s sometimes lost in the thick of litigation.
As a barrister, Marina says ‘the fight’ can be ‘really extraordinary and satisfying’ but increasingly she finds herself thinking: ‘Is it me that’s enjoyed it a bit too much… and is it really in the interests of the client?’ Ultimately, she reflects, ‘it’s trying to give people back their cases, in a way, without undermining what all of us do.’
I ask about banning non-disclosure agreements (NDAs) – which stifle women speaking out about sexual misconduct – from the workplace. ‘There are women who want to be able to leave an employment under conditions of privacy... and rebuild their lives,’ she observes. But better safeguards are required. An NDA must refer to the right to whistleblow ‘in very basic, simple wording’ she says. Further, she believes employers should provide greater sums for women signing NDAs to access independent, legal advice. ‘There’s a guideline of £500,’ she says, ‘but you get [very little] for two hours. It’s not good enough.’
My time has overrun. There has been much to discuss including The Lost Homestead, Marina’s book, which falls beyond the scope of this piece. A Green Paper conveying Marina’s proposals is due later this Spring. Assuming there’s a Labour government, will they be implemented? ‘Hopefully,’ she says. Though, she admits, ‘my own influence over that is probably very small’, and, no doubt, the date of the awaited General Election.
Marina Wheeler KC (L) and Stephanie Hayward (R) pictured after the interview.
References
‘Sexual harassment, sexual assault and rape by colleagues in the surgical workforce, and how women and men are living different realities’, Begeny et al, British Journal of Surgery, Volume 110, Issue 11, November 2023
Chesterton Global Ltd v Mohamed Nurmohamed, Public Concern at Work (intervener) [2017] EWCA Civ 979
‘Women Whistleblowers: Examining parrhesia, power and gender with Sophocles’ Antigone’, Kate Kenny and Mahaut Fanchini, Organization Studies, Vol 45 Issue 2, June 2023
‘Revealed: new claims of sexual misconduct and “toxic culture” at CBI’, Anna Isaac, The Guardian, 3 April 2023
Kong (appellant) v Gulf International Bank (UK) Ltd (respondent) [2022] EWCA Civ 941
The Lost Homestead: My Mother, Partition and the Punjab, Marina Wheeler, (Hodder & Stoughton)
The ‘non-party political’ employment silk advising Labour talks to Stephanie Hayward about employer failure to tackle workplace sexual harassment and the urgent need to reinvent whistleblowing culture
Chair of the Bar Sam Townend KC highlights some of the key achievements at the Bar Council this year
Louise Crush of Westgate Wealth Management highlights some of the ways you can cut your IHT bill
Rachel Davenport breaks down everything you need to know about AlphaBiolabs’ industry-leading laboratory testing services for legal matters
By Louise Crush of Westgate Wealth Management sets out the key steps to your dream property
A centre of excellence for youth justice, the Youth Justice Legal Centre provides specialist training, an advice line and a membership programme
By Kem Kemal of Henry Dannell
Mark Neale, Director General of the Bar Standards Board, offers an update on the Equality Rules consultation
Joanna Hardy-Susskind speaks to those walking away from the criminal Bar
Imposing a professional obligation to act in a way that advances equality, diversity and inclusion is the wrong way to achieve this ambition, says Nick Vineall KC
Tom Cosgrove KC looks at the government’s radical planning reform and the opportunities and challenges ahead for practitioners
By Ashley Friday of AlphaBiolabs
