The FSU has been briefing MPs on the Worker Protection (Amendment of Equality Act 2010) Bill, a little-known Private Members’ Bill proposed by Lib Dem MP Wera Hobhouse, which will have disastrous consequences for free speech and impose huge compliance costs on Britain’s one-and-a-half million businesses.
You can read our briefing document in full here.
In my capacity as FSU General Secretary, I’ve written to the Business Secretary and Minister for Women and Equalities, Kemi Badenoch, asking her to press pause on this legislation, not least because all the businesses affected by it should be properly consulted and the public should have an opportunity to debate such a significant expansion of the Equality Act before it becomes law.
One of the (many) things the Equality Act 2010 did was to impose a legal duty on employers to protect workers from harassment by other employees defined as “unwanted conduct relating to a protected characteristic” (i.e., age, disability, gender reassignment, race, religion or belief, sex, or sexual orientation) where that conduct has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”.
However, the Hobhouse bill will expand that duty, rendering bosses additionally liable for harassment of their employees by members of the public that they come into contact with while doing their jobs. 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, if the bill becomes law, 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.
Following pressure from the FSU, the Government amended the Bill at report stage to create 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.
I’m grateful that the Government has tried to mitigate the harm the Bill will do to British businesses by backing this amendment. But given that all four conditions will have to apply for the speech in question to be protected – just one applying will be no good – this is an extremely narrow exemption, only likely to protect a small sub-set of speech. Humour and sports chat fall outside the exception, quite arbitrarily, 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.
What about pub banter or football chants? Notwithstanding the Government’s amendment, if a barmaid or stadium steward overhears something they find upsetting that relates to a protected characteristic, even if it isn’t addressed to them, they can still sue their employers for harassment.
The Bill presents a particular challenge to employers with public-facing staff because it makes them legally liable if they fail to take what Clause 1 of the Bill as drafted describes as “all reasonable steps” to prevent third-parties harassing their employees. Will employers be required to proactively prevent anything that might constitute harassment? And what might that look like in practice? Will pubs be expected to put up signs saying, ‘No banter allowed’? (You can watch me discuss these points on GB News here). Setting aside the chilling effect this will have on free speech, there are the eye-watering compliance costs to consider. What sort of impact are they likely to have on British pubs, many of which are already struggling to survive?
As I say in my letter to Ms Badenoch: “[The FSU] would like, at the very least, the Bill to be paused so it can receive proper scrutiny. I am sure you will agree that 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 2010.”