Pub landlords will be turned into ‘banter police’, venues will be less likely to book edgy performers, and universities will be gifted a lawful reason to rescind invitations to controversial guest speakers under reforms to workers’ rights that form part of the government’s ongoing war on free speech (Mail, Telegraph).
Provisions in the draft Employment Rights Bill mean the Equality Act 2010 will be updated to make employers liable for staff being offended by third parties, such as customers or members of the public.
This will have disastrous consequences for freedom of speech, impose huge compliance costs on Britain’s one-and-a-half million businesses, further the encroachment into our lives of a philosophy of mindless compliance, and bring Starmer-esque joylessness to areas where we were once able to enjoy life.
Speaking to the Telegraph, the Free Speech Union’s (FSU’s) General Secretary Toby Young described the proposed law, which will lead to a major expansion of the New Labour-era Equality Act, as a “snowflakes’ charter”.
He said the impact on businesses will be severe, adding: “Expect every pub in England and Wales to employ ‘banter cops’ who’ll be tasked with eavesdropping on customers’ conversations and barring anyone who tells an ‘inappropriate’ joke.”
Needless to say, the FSU will be campaigning against this proposal, briefing supporters across both Houses of Parliament about the threat it poses to free speech and freedom of expression.
It’s true that the Equality Act already makes employers liable for breaches of the Equality Act by employees (but not third parties). But the leap made in Labour’s Employment Rights Bill is to apply this regime to harassment by third parties – employers will be vicariously liable for harassment that their employees suffer at the hands of third parties (i.e., members of the public) in the course of employment.
If we were just talking about sexual harassment, that would be one thing. But this bill actually seeks to extend third-party liability to every type of ‘unwanted conduct’ already prohibited by the Equality Act, including overheard conversations.
In other words, under this legislation employers will have a duty to protect their workers from overhearing ‘upsetting’ remarks made not only by their colleagues, but by members of the public as well.
Across the retail, hospitality, entertainment and academic sectors, businesses 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 be governed by formal codes of conduct and scrutinised for its potential legal consequences.
This is an unacceptable bid to legalise the interactions of day-to-day life.
Under the Equality Act, employers had a defence against a claim of third-party harassment if they could show they had taken “such steps as would have been reasonably practicable” to prevent the harassment. However, under Labour’s bill this defence only applies if the employer can show it has taken “all reasonable steps” to prevent the breach – a higher threshold that will encourage businesses to err on the side of caution in regulating what their customers say and do while on the premises.
Setting aside the chilling effect this will have on free speech, there are the eye-watering compliance costs to consider.
Across vast swathes of the retail and hospitality sectors, possible mechanisms for controlling customers’ conduct – and thereby reducing liability risk – will likely include prominent customer codes of conduct, with specific and onerous restrictions on how customers should address members of staff, with any customers assessed as posing a ‘harassment’ risk to staff being banned and placed on a blacklist.
What sort of impact is this likely to have on British pubs, for instance, many of which are already struggling to survive?
Kate Nicholls, chief executive of UKHospitality, told the Telegraph that staff in restaurants, bars, pubs and hotels are working in a “social environment” where “there are jokes and people are boisterous”. She said that while everyone wants to make sure their staff are protected “we don’t want to be policing our customers’ behaviour”.
And what will become of book launches? Would Waterstones, for example, risk an in-store book signing by JK Rowling, Kathleen Stock or Helen Joyce on the off-chance that one of the author’s fans might be wearing a T-shirt that says, ‘Woman = Adult Human Female’, knowing that an employee could sue for hurt feelings — real or vexatious?
At the costlier end of the hospitality sector where parties agree written terms – for instance, the provision of conference venues – employers are likely to reduce the risk of employees complaining of harassment by attendees by requiring guest organisations to warrant or undertake not to harass employees, and to indemnify the host for any losses it suffers as a result of employees claiming third-party harassment.
The creation of this new risk under Labour’s Employment Rights Bill, and its transfer to third parties, is likely to have a disproportionate affect on groups in our society that hold dissenting views, the expression of which can easily be misrepresented by opponents as ‘harassment’ – Christian groups, for instance, and women who believe in the reality of biological sex (i.e., are gender-critical).
Exercise of the freedoms of association and speech by these groups, by holding conferences and lectures for instance, will become disproportionately risky and expensive
The impact on higher education will be particularly egregious.
Under the Equality Act in its current form, students and visiting speakers are third parties and universities therefore do not have a legal duty to protect students and staff members from ‘harassment’ by a third party such as an external speaker.
While it is well-known that in practice UK universities regularly over apply the Equality Act, the law can nevertheless be correctly applied when campaign groups like the FSU initiate legal challenges.
However, if the Equality Act is reformed in the way proposed, this defence will no longer be available to those who want to protect free speech on campus, since universities would legitimately be able to claim they have a lawful reason to rescind an invitation to, say, a visiting speaker whose gender-critical views an activist employee regards as ‘hateful’ or ‘transphobic’.
Given the culture of risk-aversion and defensiveness at UK universities, Labour’s Employment Rights Bill as written would regularly result in universities obstructing or cancelling any speaking engagement which might potentially result in an employee claiming that the speaker’s appearance on campus and their expression of certain contentious views would constitute harassment under the Equality Act.
Put another way, the effect would be to legitimize and give force of law to some of the most egregious interferences with academic free speech.
Speaking to the Telegraph, Prof James Tooley, vice-chancellor of Buckingham University, described the Bill as “deeply worrying” and “very dangerous” for free speech on campus.
“I want to be free as vice-chancellor to be able to invite people with a whole range of views – that’s what university should be about – hearing views and being challenged,” he said.
“At the moment, I am able to stand firm and say they are coming. But if this new Bill comes in, then it is the end of my vice-chancellor speaker series.
“Given that the government has already removed other protections for free speech at universities, this is sending out a worrying message.”
Similar rights were due to come into law last year after ministers backed a Private Member’s Bill brought forward by Liberal Democrat MP Wera Hobhouse. Clause 1 of the Worker Protection (Amendment of Equality Act 2010) Bill 2022-23 would have created new liabilities for employers in cases of third party harassment of their staff, unless the employer took “all reasonable steps” to prevent it.
However, thanks in part to the FSU’s campaigning work, two amendments were ultimately accepted during committee stage, which significantly reduced the scope of the Bill, by removing Clause 1 entirely.
