Pubs and other customer-facing businesses may ban discussions on contentious topics, such as Christians expressing deeply held beliefs about sex and marriage or feminists defending women’s sex-based rights, to avoid breaching Labour’s proposed workers’ rights reforms, the UK’s equality watchdog has warned.
The Equality and Human Rights Commission (EHRC) cautioned ministers that new rules to protect employees from harassment by customers could “disproportionately curtail” freedom of expression, particularly when applied to “overheard conversations.” The watchdog warned that employers, unsure of the law, might suppress lawful speech to avoid liability.
Introduced as part of Labour’s broader workplace reforms, the proposed Employment Rights Bill includes Clause 16, which aims to address harassment by third parties, such as customers or clients. The clause amends Section 40 of the Equality Act 2010 (EqA), reintroducing an employer’s duty to prevent harassment from third parties. This duty, previously repealed in 2013, would hold employers liable for harassment by individuals outside the workplace unless they could demonstrate reasonable steps were taken to prevent it.
Harassment is defined in Section 26 of the EqA as “unwanted conduct related to a relevant protected characteristic and which violates a person’s dignity or has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment”. While the government insists this represents a high threshold, critics argue the vague language leaves room for over-interpretation, especially when it comes to speech-related incidents.
In evidence to MPs examining the bill the EHRC expressed concern that this legal ambiguity could lead to a chilling effect on speech. They warned that businesses, particularly in customer-facing sectors like hospitality, might feel compelled to ban discussions on controversial topics to avoid potential claims.
The implications for public venues like bookstores could be profound. Would a major chain like Waterstones risk hosting a book signing by controversial authors such as J.K. Rowling, Lionel Shriver, or Riley Gaines, knowing that a single complaint from an employee about a guest’s T-shirt bearing the slogan “Woman = Adult Human Female” might trigger legal liability? Critics warn that this kind of risk-averse behaviour could stifle lawful expression and restrict public debate in spaces traditionally open to diverse ideas.
At the higher end of the hospitality sector, where formal agreements are more common—such as in conference venues – employers may impose stringent requirements on guest organisations. They might insist on warranties against harassment of employees or demand indemnities for any losses resulting from third-party harassment claims. While these measures may mitigate liability, they could also further constrain lawful speech in professional and public settings.
The EHRC urged ministers to carry out more work on balancing competing rights. It warned that determining whether conduct constitutes harassment could be particularly difficult in cases of overheard conversations. This complexity would be “compounded if the conduct by the third party is the expression of an opinion that may amount to a philosophical belief under the Equality Act 2010 and therefore attract protection from discrimination.”
A philosophical belief under the Act has been ruled to include religious beliefs, views on women’s and transgender rights (both gender-critical and gender-identity affirming), political philosophies, and ethical veganism. “The legal definition of what amounts to philosophical belief is complex and not well understood by employers,” the EHRC said in its evidence to Parliament. “It is arguable that these difficulties may lead to disproportionate restriction of the right to freedom of expression under Article 10 of the European Convention on Human Rights.”
This is not the first time similar proposals have faced scrutiny. In 2011, the government considered introducing third-party harassment provisions but ultimately removed them over concerns they could unduly restrict free expression. The EHRC’s intervention suggests these concerns remain unresolved in the current bill.
The government’s own regulatory policy committee has questioned the necessity of the proposed measures, citing insufficient evidence that third-party harassment is a widespread issue. A human rights assessment accompanying the bill acknowledged potential risks to free expression, particularly in areas of “legitimate debate carried out in a contentious manner.”
While the EHRC supported measures targeting sexual harassment – describing it as a “significant issue,” particularly for young people in customer-facing roles – it called for greater clarity on balancing competing rights. “For this legislation to have the desired effect, it needs to be enforceable,” said John Kirkpatrick, the EHRC’s chief executive. “For it to be enforceable, we need clarity on the role of regulators, including the EHRC, and sufficient resources to ensure compliance.”
The proposals have sparked significant concern among industry leaders. Kate Nicholls, chief executive of UKHospitality, said: “These are complex legal issues, which employers are not equipped to navigate. Imposing disproportionate restrictions would unfairly burden businesses.” Similarly, the British Beer and Pub Association warned against expecting pub staff to adjudicate private conversations between patrons.
The broader implications are clear. Pubs, restaurants, and shops might feel compelled to implement blanket bans on controversial topics to avoid liability. Critics argue that such measures could inadvertently suppress lawful speech, particularly in spaces traditionally seen as forums for open debate.
As debates around free speech and workplace harassment intensify, recent high-profile cases involving gender-critical views and opposition to critical race theory underscore the challenges businesses face in navigating these legal grey areas. Without clear guidance, employers, employees, and the public may all face an uncertain legal landscape where even innocuous conversations carry legal risks.
