Dr Bryn Harris
The Worker Protection (Amendment of Equality Act 2010) Bill is a private members bill that was sponsored by Wera Hobhouse, a Lib Dem MP, and is supported by the Government.
This Bill will have grave implications for freedom of speech, as well as impose huge compliance costs on Britain’s one-and-a-half million businesses. We don’t think it’s an exaggeration to say it is the most momentous and far-reaching piece of legislation currently before Parliament, yet it has received very little parliamentary scrutiny and provoked almost no debate in the public square.
At present, the Equality Act imposes a legal duty on employers to protect their workers from harassment by other employees, defined as ‘unwanted conduct relating to a protected characteristic’ (age, disability, gender reassignment, race, religion or belief, sex or sexual orientation) if that conduct has the purpose or effect of violating their dignity or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’. What the Hobhouse bill will do is extend that duty so bosses will be liable for harassment of their employees by third parties, i.e., members of the public they come into contact with in the course of doing their jobs unless the employer has taken ‘all reasonable steps’ to protect them from being harassed in this way.
If this Bill was merely concerned to protect employees from being sexually harassed by members of the public, we would have few objections to it. But it goes way beyond that and extends third party liability to cover every type of ‘unwanted conduct’ that’s currently prohibited by the Equality Act, including overheard conversations. In 2018 the Employment Tribunal awarded damages of £1,000 to a former administrative assistant at Shoosmiths who was upset when she overheard another employee say ‘struggling immigrants should go back to their country’. The Tribunal found that it was ‘reasonable’ for the claimant, who was an immigrant herself, to be upset by the remark, even though it wasn’t directed at her, and her harassment claim was upheld.
Findings like these have poisoned the atmosphere in offices up and down the country, with employers frantically trying to limit their legal liability by banning an ever-expanding list of words and phrases, forcing all staff to undergo ‘unconscious bias training’ and insisting they disclose their preferred gender pronouns to curry favour with trans and non-binary employees. If this Bill becomes law, this climate of fear will spread.
It will also have a chilling effect on academic freedom, which is bizarre given that another piece of legislation going through Parliament – the Higher Education (Freedom of Speech) Bill – is designed to protect free speech on campus. At the moment, the Equality Act cannot be invoked to prevent, say, Kathleen Stock participating in a debate about trans rights at Bristol, however disagreeable some activist members of staff are likely to find her comments, because she’s not a university employee. Post-Hobhouse, visiting speakers on campus will be within scope of the Act.
When the FSU pointed this out to Kemi Badenoch, the Minister for Women and Equalities, the Government amended the Bill at Report stage in the Commons and created a narrow exemption. Under the amendment, employers will not be liable for a failure to prevent harassment of an employee by a third party where the conduct is:
- merely overheard by the employee, and not directed at him or her;
- an opinion on a political, moral, religious or social matter;
- not an indecent or grossly offensive opinion; and
- unintentional, rather than intentional harassment.
Unfortunately, given that all four conditions will have to apply for the speech in question to be protected, this is an extremely narrow exemption. Humour and sports chat fall outside the exception, as do philosophy, academic discussion and artistic or literary or critical speech, unless these are caught by the mysterious term ‘social matters’. The exception will also fail if the speech is ‘indecent or grossly offensive’ – a formulation which, in the opinion of the Law Commission of England and Wales, is unacceptably subjective and which, in our opinion, should not be disseminated more widely through the statute book.
For instance, while a talk by Kathleen Stock at Bristol University might satisfy three of the above exemptions, it would not satisfy the first if she expressed her views on, say, the admission of transwomen to women’s prisons, directly to a trans member of staff. Post-Hobhouse, any student society inviting Kathleen to give a talk would have to guarantee she didn’t speak directly to any members of staff or answer any of their questions in a Q&A following the talk.
In addition, this exemption will not apply to a member of staff in a pub who is offended by overhearing some banter between customers. Yes, it will not be directed at him or her, thereby satisfying the first condition, but unless it satisfies the other three – which is unlikely – it will still qualify as ‘unwanted conduct’ under the Equality Act. Consequently, publicans will have to take ‘all reasonable step’ to protect their employees from ‘harassment’ of this type, doing everything from sticking up notices saying ‘No Banter’ to employing bouncers to police customers’ conversations.
This amendment to the Equality Act will fundamentally change the relationship between businesses and their customers. Employers in the retail, hospitality, entertainment and academic sectors will have a legitimate legal interest in policing what members of the public say – what we now think of as every day, casual and fundamentally private speech will in future be governed by formal codes of conduct and scrutinised for its potential legal consequences. This is inconsistent with the norms of our open, liberal society. It is hard to conceive how any government, least of all a Conservative one, could conclude that the compliance culture of HR departments – with their dogmatic rigidity, unreflective worship of fashionable orthodoxy, and complete deadness to nuance and complexity – should be expanded beyond the workplace and into pubs, shops, theatres and sports grounds.
No doubt this will create lots of additional work for equalities lawyers, HR consultants and equity, diversity and inclusion officers, but at what cost to British businesses? We do not think it’s an exaggeration to say they will face more red tape than similar businesses operating in the EU. That cannot possibly be what the Brexiteers had in mind by ‘regulatory divergence’.
The Equality Act has chilled the atmosphere in workplaces up and down the country, with people living in fear that if they say the ‘wrong’ thing they will reported to HR. That chill is now going to be spread beyond the workplace into those places where people spend their leisure time.
Last summer, during the Tory leadership contest, Rishi Sunak said he’d had enough of ‘woke nonsense’ and promised to reform the Equality Act if became Prime Minister. Well, he’s keeping his promise. He’s going to reform the Equality Act, but in a way that makes the ‘woke nonsense’ 10 times worse.
This Bill has passed its 1st reading, 2nd reading, Committee stage and Report stage in the House of Commons, as well as its 1st reading in the House of Lords. It is due to have its 2nd reading in the House of Lords imminently.
We are calling on the Government to pause the Bill so it can receive proper scrutiny. All the businesses affected by it should be properly consulted and the public should have an opportunity to debate such a significant expansion to the scope of the Equality Act.