Britain’s employment tribunal system is already buckling under the weight of unresolved cases. As of December 2024, more than 43,000 single claims and 424,000 group claims remained open. The total backlog grew by 23% in twelve months, as new claims far outstripped those being settled.
Now business groups are now warning that Angela Rayner’s new Employment Rights Bill could push the system over the edge. The Deputy Prime Minister’s plan to grant rights to claim unfair dismissal after one day in the job (rather than two years) is one major driver, as is the proposal to extend the time limit for bringing harassment claims from three months to six. However, Clause 20 – the ‘banter ban’ – which dramatically expands employers’ legal liability for harassment by customers, clients and audience members, may well prove just as consequential.
Clause 20 revives, and radically expands, a provision that was scrapped from the Equality Act in 2013. Back then, employers could in theory be held liable if their staff were subjected to non-sexual harassment by a customer on three separate occasions and they failed to act. Labour’s proposal removes that safeguard entirely. Under the new regime, a single remark – whether overheard, unintended, or not even directed at anyone in particular – could trigger a claim for harassment. And if a tribunal finds that the comment created a “hostile environment” related to an employee’s protected characteristic, employers could be liable for unlimited damages, unless they can prove they took “all reasonable steps” to prevent the ‘harm’ caused.
That defence sets an exceptionally high bar. In the existing framework, employers must already meet this threshold in relation to their own staff, typically through detailed and regularly refreshed EDI training. But Clause 20 extends that same duty to cover what members of the public say. As a result, employers could now be held liable if a customer, student, audience member or guest says something that upsets an employee, unless they can prove they did everything reasonably possible to stop it.
That’s a near-impossible standard, and it’s one of the reasons Clause 20 is expected to drive thousands more claims into a tribunal system already at breaking point. According to our own estimates, this provision alone could result in 4,750 additional claims each year, with 875 proceeding to full hearings.
The good news, though, is there’s still a chance to fix the situation. A group of peers, led by FSU General Secretary Lord Young, have put forward a suite of targeted amendments designed to blunt Clause 20’s worst effects. The arguments have now been heard in the Lords, but before those amendments return at Report Stage in a few weeks’ time, it’s vital that peers hear from you.
The window to act is still open. Please use our quick-write tool to contact a peer and urge them to support the changes needed to protect free speech.
