Employment Rights Bill
Monday 19th May 2025
(1 day, 21 hours ago)
Lords ChamberEmployment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 81-IV(Corrected)(a) Amendments for Committee (Supplementary to the Fourth Corrected Marshalled List) - (19 May 2025)
Baroness Morrissey
(b) after “prevent” insert “and address”;(c) after subsection (3) insert—“(4) Where an employee makes an allegation that sexual harassment has occurred in the course of their employment, an employer must take reasonable steps to investigate the allegation.(5) Any investigation conducted in accordance with subsection (4) must be proportionate to the severity of the allegation and, where an allegation relates to—(a) sexual assault, or(b) sexual harassment by a member of the senior management of the employer,the employer must commission an independent investigation.(6) During any investigation conducted under the terms of this section, an employer must take all reasonable steps to protect the wellbeing of the employee who has made the allegation.(7) Where an investigation under this section makes recommendations, an employer must comply with those recommendations.””
Baroness Morrissey (Con)
My Lords, I will speak to the amendment in my name, on which I am very grateful for the support of the noble Baroness, Lady Kramer. We will shortly debate several proposed amendments to Clause 22 that would require employers to prevent harassment in the workplace. Amendment 82A is also designed to require employers properly to address instances of sexual harassment if they occur at work.
As set out in my register of interests, I chair the investment industry’s Diversity Project. Through that role, I receive reports of poor behaviours submitted by workers in the sector through a confidential hotline that was set up after the CBI sexual harassment scandal. Sadly, from over 30 reports submitted—90% from women—it is clear that, if someone makes an allegation of sexual harassment at work, the investigation process that follows is often very difficult for them. It is typically conducted by people they work with, compounding the embarrassment and shame, which obviously may be misplaced, and making it exceptionally awkward, especially when, as is so often the case, their complaints concern someone more senior and powerful than them in the firm.
When working in an executive role, and being no expert in the field, I was once asked to oversee a process following a woman filing a complaint of quite serious sexual misconduct, which had been witnessed by several others, only for her to withdraw it midway through because she found the whole process of being investigated by her colleagues so excruciating. Even if a complainant decides to go through with the whole process, and even if the complaint is upheld, the pattern I see from so many of the reports submitted through the Diversity Project’s hotline is that the woman’s life, including her life at work, gets worse—much worse. She ends up leaving the firm, while the perpetrator’s career is often completely unscathed.
Amendment 82A calls for an independent investigation to be carried out by people qualified to investigate cases of sexual harassment and for all those involved in the case to be appropriately protected during the investigation. It would also require firms to adopt the independent reviewer’s recommendations, following their investigation. Your Lordships may be amazed—I hope you will be amazed—to learn that, in many cases today, even if a serious complaint is upheld and the firm decides to take action against the perpetrator, it often errs on the side of leniency, especially if the perpetrator is senior or a significant revenue generator. So, I am afraid, the abuses of power continue.
Even if a firm dismisses, it can fail to qualify references, so the bad apple is put back in the system to reoffend. A couple of years ago, I received a tip-off from a former colleague that a man who had been let go from a City firm for sexual harassment had committed the exact same thing at the next firm and was now being investigated again. He was then let go from that firm and, I have just discovered, is now in a senior role at yet another one. Clearly, something is very wrong with a system that lets this happen, especially in the highly regulated financial sector. Those of us who work in financial services hope very much that the regulators—both the FCA and the PRA—will eventually produce guidance for regulated firms about what they euphemistically call non-financial misconduct, but I recognise that the problem goes far beyond the City.
I urge the Government to consider reasonable measures requiring firms to address instances of sexual misconduct at work, as well as seeking to prevent it occurring in the first place. The Bill provides a perfect opportunity to do this, after far too long when abuses of power have been allowed to go unchecked. How many more cases will we read about in the papers where nothing was done for years—decades even—to address these behaviours, before we take action? A workplace free from sexual harassment is surely the least that employees should be able to expect, and this amendment is designed to strengthen the Bill in this respect. I beg to move.
Baroness Kramer (LD)
My Lords, I am a signatory to this excellent amendment, but I am also speaking as a winder from these Benches. I shall speak very briefly, because I will touch on many of the issues in a later group, but this is so important. I am so glad that the noble Baroness, Lady Morrissey, brought forward an amendment that focuses on the issue of investigation and action.
The noble Baroness has made the case powerfully, but for many people, it is such a shock to realise that it is the victim of sexual harassment—usually a woman, sometimes a man—who finds themselves, in effect, on trial. That is how the investigative process, when it happens, generally progresses. We all know that that is wrong and has to change.
If you talk to people who have been victims and ask them what they want most as a response to having spoken out, despite what they have gone through, the answer, again and again, is twofold. First, they never want this to happen to anybody else; secondly, they want investigation and action. The systems we have in place never focus on that issue and drive it as the primary response when somebody speaks out with a serious complaint of this nature; we will be talking later about complaints of another nature. I hope very much that people will become engaged with this issue, which has been so well represented here today.
Lord Hunt of Wirral (Con)
My Lords, I commend my noble friend Lady Morrissey on moving this important amendment. She speaks from her own personal experience with wisdom and understanding, in particular on the whole issue of investigation and action. I also agree with the noble Baroness, Lady Kramer: the victim can so often find themselves on trial, and that is unacceptable.
So I have some sympathy with this amendment, in that it seeks a more proportionate approach to the matter than the Bill currently contains. We all agree that harassment, particularly when it is persistent—and, even worse, when it comes from a senior colleague—is a stain on society. Not only does it poison the workplace; it can ruin lives.
The amendment emphasises the need for employers to act reasonably, particularly in cases involving serious allegations such as sexual assault or harassment by senior management, and to protect the well-being of the employee involved.
Of course, many businesses already follow best practice, and we believe that proper measures to address the issue are critical in building safer and more respectful workplaces. Clause 20 as drafted also raises concerns about free expression, and it is our view that the amendment would be better placed elsewhere in the Bill, where it can be more thoroughly examined and discussed in its own context, without the issue of freedom of expression being engaged.
I want to emphasise from these Benches that we are committed to tackling sexual harassment in a meaningful way, but we also believe in ensuring that the right to free expression is carefully protected. We will listen very carefully to the Minister’s response to these concerns, and we will continue to advocate for a balanced approach that protects the dignity and safety of individuals while preserving fundamental rights.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, this has been a good introduction to the further debates we will have today on provisions in the Bill on harassment. I am grateful to the noble Baronesses, Lady Kramer and Lady Morrissey, for tabling Amendment 82A. Both made important points about investigation and action being crucial.
The Government agree that while the preventive duty places broad requirements on employers, it is important to ensure that specific steps are taken by employers to combat sexual harassment in the workplace. This is why, in addition to strengthening the preventive duty, we are introducing a delegated power, enabling us to specify steps that are to be regarded as reasonable for the purpose of meeting the obligations set out in the Equality Act 2010 to take all reasonable steps to prevent sexual harassment.
The regulations may also require an employer to have regard to specific matters when taking those steps. The regulations that the power will introduce will help clarify what is expected of employers, as well as guiding the EHRC or employment tribunals when taking enforcement action. These steps may include requirements on employers to undertake investigations following complaints and action recommendations, in addition to the requirements set out in the ACAS code of practice on disciplinary and grievance procedures. To better understand what steps are effective and proportionate, we have launched a call for evidence, and we will give responses careful consideration.
I have to say to the noble Baroness that it would be premature to introduce specific requirements in relation to investigations at this stage. I ask her to withdraw Amendment 82A, but I hope she will take on board that I am happy to continue discussions with her on these issues after the call for evidence concludes. I am sure we can reach an agreement going forward on that basis.
Baroness Morrissey (Con)
My Lords, I thank the noble Lord, Lord Hunt of Wirral, and the noble Baroness, Lady Kramer, for their thoughtful remarks, and in particular for highlighting the need for investigation and action to protect the victims.
I was slightly surprised at the grouping of this amendment, as it probably sits better among the other provisions and amendments designed to combat sexual harassment that we will be discussing later.
I am glad to hear from the Minister that a consultation is planned, which may include provisions requiring employers to conduct proper investigations. I look forward to hearing further about that. But for now, I beg leave to withdraw the amendment.
Lord Young of Acton
“(1D) In this section, the definition of “harassment” cannot include conversation or speech involving the expression of an opinion on a political, moral, religious or social matter, provided the opinion is not indecent or grossly offensive.”Member's explanatory statement
This amendment means employers would not have to take all reasonable steps to protect their employees from hearing or over-hearing expressions of opinion (from either employees, or third parties) on political, moral, religious or social matters that they might find offensive or upsetting by virtue of their protected characteristics, provided the opinion is not indecent or grossly offensive.
Lord Young of Acton (Con)
My Lords, in moving Amendment 83 I will speak to Amendments 84 to 86 and 88 in this group. I declare my interests as the general secretary of the Free Speech Union and as an employer.
As your Lordships know, Clause 20 amends Section 40 of the Equality Act to make employers liable for the harassment of their employees by third parties. Henceforth, they will have to take all reasonable steps to protect their employees from third-party harassment, and if they fail to do so, they could be sued in the employment tribunal. Do not let the proponents of Clause 20 muddy the waters by claiming it will protect workers from sexual harassment by third parties: employers are already liable for third-party sexual harassment thanks to the Worker Protection Act 2023.
Where is the evidence that non-sexual third-party harassment is a problem in the workplace? There is none in the final-stage impact assessment. For that, we have to turn to a fact sheet produced by the Office for Equality and Opportunity and the Department for Business and Trade published last year, which says:
“For the year ending March 2024, 9.2% of people aged 16 years and over who said they had experienced non-sexual harassment in the last 12 months, reported that they had been harassed by a client or member of the public contacted through work”.
But only 5.5% of the respondents in that survey reported experiencing non-sexual harassment, and 9.2% of 5.5% is 0.51%. To be clear, only 0.51% of the respondents in this survey reported experiencing non-sexual third-party harassment in the workplace or through work in the past year.
As the Equality and Human Rights Commission said in its parliamentary briefing on this clause ahead of Second Reading:
“Evidence of the prevalence of third-party harassment in the workplace, beyond sexual harassment, is limited”.
Incidentally, that is also the opinion of the Regulatory Policy Committee.
Baroness Noakes (Con)
My Lords, I have several amendments in this group. I also support all the amendments in the name of my noble friend Lord Young of Acton. The extension of the Equality Act harassment provisions is not new territory. In 2023 it was included in a Private Member’s Bill, which became the Worker Protection (Amendment of Equality Act 2010) Act 2023. A number of us were concerned about the extension of employer liability for non-sexual harassment and tabled amendments to remove that part of the Bill. In the event, that aspect of the Bill was dropped, and we all heaved a sigh of relief until we saw this Bill published last autumn.
The provisions of Clause 20 are, in many respects, worse than the 2023 Bill, which at least tried to address the issue of freedom of speech. It did not go far enough, but at least it tried. This Bill proceeds on the basis that freedom of speech is not an issue. My noble friend Lord Young’s amendments are absolutely essential if there is to be a workable and fair extension of employer liability for harassment.
I will not repeat the arguments put forward but will emphasise how burdensome such a requirement can be for a small business. Since most businesses in this country are small, accounting for a bit less than half of private sector employment, Clause 20 is a very big problem. It is already hard enough to run a small business and cope with all the regulatory burdens that the state imposes. This new requirement will extend into the realms of impossibility. How can a small hospitality or retail business realistically cover itself against every possibility that a member of staff might perceive that they have been harassed by a customer or even a passer-by?
I have a specific question for the Minister on the territorial scope of Clause 20 or, more accurately, Section 40 of the Equality Act as amended by Clause 20. Does the duty to prevent harassment apply only to UK-based employees or does it also apply to those who are overseas?
I am sure that noble Lords who have dealt with overseas call centres recognise that it can be a somewhat vexing experience. Recently, a young man who was almost certainly in India insisted that he must educate me for 10 minutes on frauds and scams before he would unblock one of my credit cards, which had hit one of those fraud trip-wires in connection with a perfectly straightforward transaction that I had already completed on another card without any problems whatever. I explained that to the young man. I explained that I knew quite a bit about frauds, scams and financial services, but he was absolutely adamant about my educational needs. I hope that my responses were not perceived as harassment, but one can never tell these days. Does Clause 20 mean that my card provider will be liable if I intentionally or otherwise harass its overseas employees? If so, how on earth does that work?
My Amendment 87, in seeking to avoid single incidents being treated as harassment, is a softer version of my noble friend Lord Young’s Amendment 86. I stress that I am not talking about sexual harassment—a single incident of sexual harassment is one too many. Rather, I am talking about the kinds of harassment that my noble friend Lord Young has described. We really cannot expect employers to be able to prevent every single incidence of hurt feelings, if only because the highly subjective nature of workers’ perceptions means that employers face an impossible task.
My Amendments 89 to 96 concern Clause 21, which empowers the Secretary of State to make regulations about “reasonable steps” in the case of sexual harassment. I always thought that the Equality and Human Rights Commission was the correct source of guidance on the application of the 2010 Act. But if we accept that it is right for the Secretary of State to get involved in the specifics of sexual harassment and the “reasonable steps” that are necessary, logic requires that it should extend to all forms of harassment where an employer has to take all “reasonable steps”. That is what my Amendments 89, 93, 95 and 96 seek to achieve.
Furthermore, if the Secretary of State issues rules about what constitutes “reasonable steps”, we need to see what the consequences of that are. If employers can establish that they have followed the steps set out in the regulations, I believe there should be no question of falling foul of the revised harassment regime in Section 40 of the 2010 Act. It should be for the Secretary of State to ensure that the rules set out in regulations are comprehensive and for employers to follow them. My Amendment 94 would then give employers protection from the harassment provisions.
Lastly, and for good measure, I included a may/must amendment in Amendments 90 and 91, so that the Secretary of State would be required to issue regulations dealing with all “reasonable steps”. This is such a difficult area for employers, particularly in customer-facing businesses, but it should be incumbent on the Secretary of State to set out clearly and comprehensively what employers need to do.
Baroness Carberry of Muswell Hill (Lab)
My Lords, I focus particularly on Amendments 83 and 84, which purport to deal with a hypothetical “banter ban”. I listened very carefully to what the noble Lord, Lord Young, said about these amendments because I have been struggling to understand why they are thought necessary. I regret to say, with the greatest respect, that I am still none the wiser.
The wording in those two amendments does not need to be included in the Bill because most overheard conversations that someone who hears might not like would already fail the test of unlawful harassment in the Equality Act 2010. Most overheard conversations would not fall under the definition of harassment in Section 26 of that Act. That would include the example given by the noble Lord of a blind person at a football match. To be caught by the definition, something an employee hears at work and finds objectionable or offensive would need to be relevant to a protected characteristic and would also need to have
“the purpose or effect of … violating”
the person’s
“dignity, or … creating an intimidating, hostile, degrading, humiliating or offensive environment”.
If this were put to the test, it would not just be about the employee’s subjective perception. If a case like this ever ended up in court, which is highly unlikely, the court would also have to take into account all the circumstances and would need to decide whether it was reasonable for the overheard conversation to have had the effect of violating dignity or creating a
“hostile, degrading, humiliating or offensive environment”.
In other words, the subjective is balanced against the objective, and context will always be crucial.
The average everyday chat in the pub or elsewhere would not pass these tests, however much someone dislikes what they hear, so the Bill would not require employers to take steps to prevent conversational expressions of opinion on, in the words of the amendment,
“a political, moral, religious or social matter”.
Of course, in some circumstances, third parties do abuse and harass employees. It happens with depressing regularity, notably in hospitality, which the noble Lord seeks to exclude from the Bill altogether. It can happen when abuse is obviously directed at an employee by way of a pretended or fake conversation that is obviously expressly designed to be overheard and to offend. That is the whole point of this clause. Instances of obvious direct harassment and abuse of employees by third parties would, rightly, be protected by the Bill under current definitions.
It is important to note that steps to prevent this would not place an onerous burden on employers. As my noble friend the Minister said in her introduction, regulations will set out steps that employers should take, but many employers already take relevant steps to prevent this sort of offensive behaviour. For example, your Lordships will be very familiar with signs on public transport or in healthcare settings warning that abuse of staff will not be tolerated. That is very familiar to all of us.
The broader point here is that the Bill’s purpose is to require employers to take all reasonable steps to prevent their staff being harassed and abused by customers or members of the public. It is not about preventing or regulating private conversations or restricting free expression. I suggest that Amendments 83 and 84 would not add anything and are not needed.
Baroness Fox of Buckley (Non-Afl)
My Lords, the whole of Clause 20 should not stand part and should be dropped from the Bill. The amendments that I have put my name to are mitigating, in case this very dangerous clause is not dropped, but I remain hopeful that the Government will realise—despite what the noble Baroness, Lady Carberry, just argued—that this clause will, no doubt unintentionally, be not only bad for business and a range of public-facing institutions but detrimental to workers.
I appreciate that the Government are seeking to reassure and dampen down the public unease about this clause with their suggestions that campaigners are hyping up the threat that it could pose to free speech, but I have yet to hear a convincing positive argument for why legislation is being used to create this sweeping new duty that will significantly expand all employers’ liability for third-party harassment of their employees. It is unclear why, if any employee has evidence of harassment as just described, they do not call the police. Should this not be left for criminal law to deal with, rather than extending employment law?
This clause puts the onus on employers to plan for, prevent and police alleged problematic interactions—a task they are simply not qualified to do, and indeed should have no right to do. This clause amends the Equality Act by reinstating liability for harassment of employees by third parties. As we know, that was in the original 2010 Act, but, when the then coalition Government consulted on the matter, there was such negative feedback that it was kicked out in 2013. Why has it now reappeared, with no consultation?
Moreover, this new duty is considerably more onerous. For example, there are no exemptions. One of the amendments that I have put my name to tries to at least carve out especially vulnerable sectors. As we have heard, employers would be liable for any single act of harassment by a third party. In the previous iteration, employers would have been liable only if the employee was harassed for a third time. Again, an amendment has been tabled to remedy this. To date, the Government have not presented any evidence that would justify ignoring the reasons why the original liability was rebutted, so what has changed that demands it?
Superficially, protecting employees from harassment sounds fair enough to all of us, but a lot hinges on what we consider harassment to mean. First, one confusion to clarify is that the content of this clause is sometimes bundled together with the issue of sexual harassment, giving it a moral force that is not merited. To be clear—as others have been—Clause 20 covers liability for third-party non-sexual harassment.
There is then the common-sense notion of harassment in people’s minds. This is understandable but misplaced. Lord Sumption, in Hayes v Willoughby in 2013, said of harassment that it is
“an ordinary English word with a well understood meaning”,
going on to describe it as
“a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person, which is calculated to and does cause that person alarm fear or distress”.
If only that was the definition. Unfortunately, Lord Sumption’s wise thought that harassment has a well understood meaning is not true in the 2025 era of lawfare.
Section 26 of the Equality Act defines harassment as
“unwanted conduct related to a relevant protected characteristic”.
The EHRC guidance sets out that this can include “spoken words”, “banter”, “jokes”, “written words”, “imagery”, “physical gestures”, “facial expressions” and “posts on social media”. That is a very broad catch-all list of forms of harassment that employers will now have to protect their employees from when encountering third parties.
Harassment under the Equality Act includes indirect harassment. I cannot see any way for an employer to seek to comply with this when they will be compelled to take all reasonable steps to prevent their staff encountering, or even overhearing, those conversations, jokes and remarks that they might find upsetting in view of their protected characteristics. Harassment cases taken to employment tribunals increasingly concern conduct having the effect of harassment, rather than behaviour intended to have that effect. The motives or intentions of the third party are irrelevant.
I have noticed that, in response to previous speeches raising concerns about this clause, the Government have argued that it will not be enough for the claimant simply to claim that someone’s conduct is offensive, and that there will be an objective test in which the reasonableness and facts of the individual situation will always be considered. But in every iteration of harassment—in law; in codes of conduct, including our own, here in the Lords; and, for example, in all elements of the regulation of hate speech—a key factor is the perception of the claimant. That is unduly subjective—something I have raised as a problem on numerous occasions, only to be told by Government Ministers that victims’ feelings are a core component. I would be more than happy if the Government were proposing amending equality law to tighten this up and narrow down indirect harassment, but, in the present circumstances, Clause 20 is a minefield and opens the door to egregious and boundless litigation across the board.
I want to consider who these third parties are. Maybe in the Government’s mind they are lairy, drunken, rich businessmen shouting abuse, or some mythical, anti-social, boorish bigots roaming around public-facing establishments hunting down hard-pressed staff to harass. In reality, who is it who goes to the football or the rugby and may fall foul of the law, as the noble Lord, Lord Young, illustrated? It is other workers who relax on their days off by supporting their sports clubs, and who do not mince their words while doing so.
Who do the Government think frequents pubs? These third parties could well include workmates who go for a pint after a long shift and may want to let off steam by moaning about their bosses, only for a member of the bar staff to take their lively views personally and feel harassed. They could be a group of care workers, gossiping away as they get their nails done and discussing the local grooming gang scandal, to which someone who works at the beauty salon takes offence. What about a bunch of apprentices on a night out at a comedy gig who join the heckling banter and perhaps shout something that a staff member or steward says insults their protected characteristic? What about the ex-police officer reading a Brexity book in the cafe and chatting to a staff member about it, and so on?
In other words, beyond some abstract legalese, third parties in the flesh are fellow workers trying to spend their private time unassailed by undue, back-door state regulation of their speech and leisure.
I note that, in universities, third parties are not just external speakers but students, who are now considered consumers and customers. Already, without this clause, there is a growing phenomenon of university management imposing rigorous speech codes on the student body in the form of anti-harassment policies under the guise of dignity at work and study policies. Many of us who are campaigners for free speech, such as those at the Free Speech Union, or my colleagues at the Academy of Ideas and Living Freedom, are working with students to roll back these policies that are a serious threat to academic freedom. Clause 20 would not only justify such censorious policing of students’ speech but would, in effect, necessitate it, as it would be remiss of any university not to take steps to minimise the liability risk of students offending academic staff and making them feel unsafe and complain of harassment.
Finally, I am concerned about the disproportionate effect that this will have on groups in society who hold dissenting views, expressions of which are too easily and regularly misrepresented as harassment. Surely any businesses that operate venues as part of the hospitality industry will seek to manage their liability through a risk-averse approach to any potentially contentious gatherings booking their premises. You can just imagine the conversations: “Oh God, no. Those evangelical Christians want to book a room again. That could be seen as harassing our gay staff”; “Oh, damn—that pro-Israel group wants to hold a meeting here, but lots of the catering staff are pro-Palestinian migrants. It is a bit risky”; “Drat. That bolshy Women’s Rights Network and Let Women Speak lot have arranged to meet here with all those customers wearing ‘Women = Adult Human Female’ T-shirts. That is bound to wind up our right-on, trans-ally bar staff. Just tell them we’re fully booked”.
In other words, Clause 20 could lead to overly cautious, “better safe than sorry”, informal blacklists. It could radically change and toxify the relationship between businesses and their customers. It is no longer “the customer is always right”, and you can forget about improving customer service; now customers are third-party harassment risks to staff.
We live in an era of divisive cancel culture. This misplaced assertion of the right not to be offended threatens social cohesion. We as legislators should seek to dismantle this culture and not add to it, as Clause 20 absolutely does.
Baroness Meyer (Con)
My Lords, I shall speak to my amendments, as well as Amendment 84, for the same reasons so clearly highlighted by the noble Lord, Lord Young of Acton, and the noble Baroness, Lady Fox. Of course no one should ever face sexual harassment at work. That is why we passed the worker protection Act 2023 to place a clear duty on employers to take reasonable steps to prevent it, including from third parties. That law came into force only six months ago, so, as the noble Baroness, Lady Fox, quite clearly highlighted, why are we adding the so-called banter clause?
Clause 20 is not just unnecessary but a threat to free speech, a blow to small businesses, and a betrayal of the very spirit of this country. It amends the Equality Act 2010 to extend third-party harassment to non-sexual conduct. A casual comment between customers that is misunderstood or simply unpopular could trigger a legal claim, as noble Lords previously explained. This is not the same as the Conservative Government’s earlier reforms, which explicitly protected political, moral, religious or social opinions. Are we really expecting publicans, shopkeepers and café owners to police conversations on their premises? Someone joked that pubs would need “banter bouncers”. The Government laughed, but for small businesses it is not a joke. Even the Equality and Human Rights Commission warns that this is legally complex and challenging. Employers will need legal advice, staff training and new policy, and will risk get it wrong.
Clause 20 also demands that employers “take all reasonable steps” to protect their employees. This sounds minor, but it creates major uncertainty. What does “all reasonable steps” mean? To make matters worse, the Secretary of State will define reasonable steps by secondary legislation, without parliamentary scrutiny. This is not good governance. And at what cost? The Budget itself estimates an extra £3.4 billion cost for the hospitality sector alone. Dozens of pubs are already closing every week. Do we really want to make this worse?
This debate is not only legal and economic; it is also cultural and, for me, personal. I became a British citizen not because I had to but because I wanted to. I fell in love with this country for its soul, its quiet strength, its humour and its tolerance. In Britain, we did not take offence; we took the mickey. We disapproved without outrage. We rolled our eyes and moved on. We did not report people or call a lawyer. As Douglas Sutherland once said, the Englishman is never quite so natural as when he is being artificially humorous. That gentle irony—that refusal to take ourselves too seriously—is part of who we are. This clause will legislate it out of existence. This is not dignity at work; it is paranoia in public. Clause 20 will create a society where offence becomes power and litigation will replace common sense. We will become a society that silences its own people. We have seen where that leads—in regimes built on censorship and denunciation.
These amendments are crucial. Without them, the consequences will be more regulation, more red tape, more job losses and more silent voices before, once again, we will be forced to admit that we have gone too far. I support all the noble Lords who spoke before me in favour of these amendments. In particular, I reiterate that Clause 20 is unnecessary.
Lord Londesborough (CB)
My Lords, I will speak in particular to Amendments 83 to 85, tabled by the noble Lord, Lord Young of Acton. Clause 20, on harassment by third parties, although well-intentioned, has triggered this batch of amendments, none of which is perfect. Most seek to damage limit the Bill or bring in exemptions.
I will focus on the exemptions proposed in Amendment 85 and declare up front a relevant interest, in that I hold a significant minority stake in a rural community pub in mid-Wales. As we have already heard, the hospitality sector is low margin and struggling with a range of issues, including shortages of staff, smoking bans, competition from supermarkets, the rise of home entertainment, big tech and social media. Pubs specifically have had a horrendous time. In England and Wales alone, we have lost 13,000 pubs in the past 25 years and, as we have heard, each and every week another 10 close their doors for the final time.
Now this Bill expects the owner or the bar manager, often on low pay and inexperienced, to take on the role of a conversation arbiter or chat monitor in case a customer says something to their drinking or dining pal that is overheard and deemed offensive by an employee. To be clear, I accept that employers should step up if their customers or clients are being offensive to their staff. Yes, they have a responsibility to their staff’s welfare and to their code of conduct, but is legislating in this way the answer? It leaves so many questions, on a subjective level, of what is offensive and what is not.
That brings me to the second sector proposed for exemption by Amendment 85: sports venues. This is where Clause 20 threatens to become unworkable. This struck me only yesterday while I was in the London Stadium, with 60,000 others, watching West Ham stumble to yet another home defeat, this time against Nottingham Forest. There was a lot of anger in the crowd and much of the language could be described as vulgar or offensive. Others would call it passionate, fruity, spiky or humorous, but these views could be heard—or, importantly, overheard—by club officials, security staff, stewards, the police, bar staff, programme sellers and burger flippers, all of whom are employees of the club, the stadium, or various contractors and subcontractors. These views, in the space of 10 minutes, included the manager’s IQ being questioned vigorously and frequently; savaging of the players and their work ethic; forthright suggestions that the referee’s assistant should book multiple appointments at Specsavers; and, finally, the referee himself being repeatedly accused of practising self-love.
I am choosing my words carefully and not quoting directly in order to meet this House’s Code of Conduct, which I respect and have signed up to, but if I did not and repeated some of the profanities I heard yesterday, I would be in trouble. Here is the thing: Parliament, as an employer, would not currently be taken to a tribunal by a colleague, a doorkeeper or a Hansard employee who found my language offensive, but that could change if this Bill has its way.
The point is that most workplaces are covered by a code of conduct or employer’s handbook that sets out the markers and helps sort most of these incidents without the need for dispute litigation, employment lawyers or, indeed, tribunals. Much of this is driven by common sense and human decency, and the mutual interest of employer and employee to ensure a productive and harmonious working environment. Clause 20 threatens to undo much of that. I ask the Minister and this Government to seriously think again.
Baroness Lawlor (Con)
I rise to support the amendments in the names of my noble friends Lord Young of Acton and Lady Noakes to Clauses 20 and 21. Both noted, as have other noble Lords, the impact these clauses will have on small businesses already struggling under a juggernaut of burdens, particularly those introduced since last July.
I begin with my noble friend Lady Noakes’s amendments to Clause 21, which, as she noted, amends the Equality Act 2010. These amendments, Amendments 89 to 96, would require regulations to specify the steps an employer needs to take to prevent the harassment of an employee and to cover all forms of harassment so that, provided those steps are followed, the employer is protected from liability. This change is reasonable and proportionate, in that it would oblige regulations to specify the steps needed to protect employers from liability to claims. It is a matter of fairness and good law that a measure should be clear about the duties under it, rather than leaving it to litigation.
The measure also has precedents, such as health and safety regulations in which employers’ duties are set out. In the Management of Health and Safety at Work Regulations 1999 the main duties are to identify risks, assess them and reduce them. The Workplace (Health, Safety and Welfare) Regulations 1992 require employers to provide adequate lighting, heating, ventilation and workspace and to keep them in a clean condition—and so on throughout the health and safety regulations of the 1990s. As if to egg the cake, we have the HSE’s guide on the steps needed to manage risk, which sets out step by step the process for controlling health and safety risk, in line with the regulations to identify hazards, assess risk and so on.
My noble friend Lady Noakes’s amendments to Clause 21 would ensure that employers know what is required in respect of preventing harassment, which matters in itself and is germane to good law. I therefore support them.
I also support Amendments 83 to 88, to Clause 20, in the names of my noble friends Lord Young of Acton and Lady Noakes. They address what is and is not required of employers in protecting their employees; clarify harassment to exclude
“the expression of an opinion on a political, moral, religious or social matter, provided the opinion is not indecent or grossly offensive”;
exclude the hospitality sector, university settings and sports venues so the obligation on the employer does not apply; exclude indirect harassment; take account of the employee’s perception of the circumstances and whether it was reasonable to have the effect; and take account of whether it was an isolated incident. These are all important amendments that have a great deal of support across the Committee.
Noble Lords have already explained how Clause 20 could undermine freedom of speech. We are not speaking of an employer’s liability for direct harassment by a third party, such as customers or clients, against an employee. That is covered by Section 40 of the Equality Act 2010. Rather, the clause being amended has the effect of making the employer liable for what third parties say when speaking among themselves, and which is then overheard by an employee. This might occur in a bar, restaurant, shop, the foyer of a cinema or theatre or on public transport. Customers in a restaurant or a bar might be discussing the latest immigration figures, the likelihood of yet more unsustainable migration into the country, the shortage of housing, schools and hospitals, ever longer waiting lists for a place or a bed, or an inability to understand English. To hold an employer liable for a private conversation among customers overheard by an employee is wrong. It would bring the law into disrepute.
Baroness Deech (CB)
I rise to support the noble Lord, Lord Young of Acton. It is great to have another champion of free speech in this House. I put my name to two amendments, Amendments 84 and 88, but I would happily have supported all the amendments in this group.
May I raise this to a slightly higher level? Earlier this afternoon, we heard a great deal of justified passion and appeal to principle in relation to creative rights. This time, we are talking about free speech, which I see as creepingly under attack in recent years—in fact, under this Government.
The situation is getting very bad: whether it is the halting of a higher education freedom of speech Bill or the failure, conversely, to stop hate marches proceeding through Jewish areas on Fridays and Saturdays or, indeed, outside this House; or whether it is arresting people for tweets, bursting into their houses with police because they have made an unpleasant tweet. We do not know where we are with freedom of speech any more. All we know is that we have to be very careful, and this is highly significant.
If the noble Baroness, Lady Carberry, was right in her analysis, we do not need Clause 20 at all; there is other protection for the sort of things that we are worried about. However, I will give your Lordships a couple of examples that puzzle me. I have read that the Co-op is now applying a policy of boycott, divestment and sanctions against Israel and Israeli products. Some would say that that is mere anti-Zionism; some would say that it is antisemitism.
Noble Lords will know that a yellow ribbon, which I see some Members of this House are wearing, stands for freeing the hostages. If I go into the Co-op wearing a yellow ribbon, am I offending those employees of the Co-op who are firmly anti-Zionist, anti-Zionism being a protected characteristic? If I go in there and ask for a tub of hummus and I am told that they do not have it, am I upsetting the employees or the policy of the Co-op? And what if there are Jewish employees of the Co-op who hold different views?
Noble Lords will know—I have often talked about this—that the main road from my home in Oxford to the station is completely blocked; one cannot get to the station except by walking about half a mile over cables and cones. I think it was yesterday that I picked my weary, arthritic way through this, and there was one of the builder’s employees pointing me in a different direction. I have to say that I lost my temper. I got worried afterwards that maybe I had harassed him but, frankly, the only way to stop harassment of those employees is for them to get that work done.
I mention those examples because I think the definitions will be extremely difficult. I am worried about freedom of speech, about the chilling effect that recent legislation and, indeed, social attitudes have had. Schoolchildren have recently been told that there should not be so much definition of their unhappiness as being about mental health. In relation to many things that are regarded as mental health issues, one might say, “Grow some grit”. I would say, “Grow some grit”, in relation to some things that people are worried about as expressed in Clause 20.
There is no right not to be offended, short of by hate speech or terrorism, let alone having someone else be offended on one’s behalf. Let us return to freedom of speech, uphold these amendments and get rid of Clause 20.
Lord Strathcarron (Con)
My Lords, I will speak to Amendments 83, 85, 86 and 88 in my name. I am sure noble Lords will have noticed that, after the Second Reading of this Bill, media reports the next day focused disproportionately on what was reported as the absurdity of employers being held responsible for employees who are offended by third parties in situations in which the employers had no control over who said what, to whom, when, why or where. The “where” aspect is important, because this also applies to real or imaginary offence taken by employees off-site of the employer’s premises. It was rightly reported the next day as an Alice in Wonderland proposal, where the whole concept of responsibility is turned topsy-turvy. Another reported it less kindly as “bonkers”, and yet another as a new way for unscrupulous lawyers to make a killing.
One can only imagine the fresh media ridicule to which your Lordships’ House will be exposed if it allows Clause 20 to go through unamended. Of course, it is no ridicule for employers, or taxpayers where this happens in the public sector, but potentially a very expensive and time-consuming burden on them, and wide open to vexatious misuse.
Amendment 83 would the remove employers having to be responsible for their customers being overheard talking about matters of the day. If the proposers of the Bill had visited a pub, for example, they would know that a pub is a Parliament in which customers have just as much right to discuss the ways of the world as we do here in this Parliament.
Amendment 85 refers to the hospitality sector, sports venues and higher education settings. To give an example close to home of why it is needed in the hospitality sector, let us say that I invited someone to visit me here in your Lordships’ House and this person did not have English as his or her first language. Let us say, further, that my guest had stopped off at the Red Lion on the way here for refreshments, and that, after our meeting, I took him or her down to the River Restaurant for a quick meal. If this guest happened to see that one of the items on the menu was a curry, and remarked to the unprotected-characteristic employee serving the curry that no one in England knows how to make a proper curry, and if that remark was overheard by a chef with a protected characteristic, then the overhearing person could take real or vexatious offence, and the House of Lords could be taken to the tribunal, or more likely, after several months and thousands of pounds, there would be a pre-tribunal taxpayer-funded pay-off.
I am sure that noble Lords do not need reminding that such vexatious claims are a significant contributor to the 50,000 tribunal case hearings and one-year waiting-time backlog. We would indeed then be laughing stocks for allowing our own legislation to be used against us like this, or even to exist at all in the wider context.
That Amendment 85 should apply also to sports venues would be obvious if the proposers had attended any sports event, where support for a competing individual or team is necessarily enthusiastic and often boisterous. The crowd’s speech is so impossible for the venue employer to control that, if a protected-characteristic steward took offence at a remark aimed indirectly at an official, the employer would inevitably raise waivers with the organisers, who might quite reasonably think the whole idea is not worth the candle, and so unintended consequences would strike again. This is what we recently saw with the Terrorism (Protection of Premises) Act, leading to long-standing local events—in one case, a 150 year-old local flower show—being cancelled because it was caught in the collateral damage of well-intentioned legislation, just like this part of the Bill that we are discussing now.
Amendment 85 also seeks to exempt higher education settings, where, surely, hearing and coping with diverse opinions is what education is supposed to be about. Amendment 86 seeks to remove any offence taken by casual overhearing if that happens just once, by applying a rule that would rely on the offender causing offence on purpose rather than by mistake, casually, or—with the recent enormous rise in employees whose first language is not English—doing so through an understandable lack of familiarity with the language, with its nuances, subtexts, sarcasms and ironies that a native speaker would understand.
Amendment 88 seems the most reasonable of all, removing the overhearing aspect of the legislation, which is the one most open to vexatious claims, and for which, surely, no employer can reasonably be held responsible in any foreseeable circumstances.
I hope that, after hearing all the arguments against Clause 20, the Government will agree that these amendments would remove the most egregious parts of it and bring an element of reality to bear on these unforeseeable and uncontrollable circumstances in which employers might find themselves.
Lord Ashcombe (Con)
My Lords, I will speak to Amendment 83, in the name of my noble friend Lord Young of Acton, and others in this group tabled by my noble friend Lady Noakes. I would like to reflect on the practical implications of these amendments for companies that regularly receive visitors in the course of their business. As noble Lords may be aware, I work for Marsh, an international, American-owned insurance broker. We are fortunate to welcome clients from across the globe—individuals from many cultures with diverse values—who come to London to discuss their insurance needs. As the noble Lord, Lord Londesborough, noted, at Marsh we are guided by a strong internal code of conduct known as The Greater Good. This code outlines our organisational values and individual responsibilities. It is built on three pillars: “Win with integrity”, “You are never alone” and “Speak up”. These principles are designed to ensure a safe, respectful and inclusive environment for all our employees wherever in the world we operate; it matters not whether it is London or Singapore.
However, while we can uphold these standards internally, we cannot reasonably expect all visitors to our offices to be bound by the same code, much as we might wish it. Nor can we predict or control every comment made in the course of a conversation. Is it truly fair or practical to hold a company liable for remarks made by a visitor that may touch on political, moral, religious or social matters, as we have heard, and are not indecent or grossly offensive but might none the less be perceived as offensive by an employee or another guest? Such a standard would place an impossible burden on businesses, not just in hospitality and so on. It is simply not feasible to monitor or pre-empt every interaction that takes place on our premises.
Baroness Cash (Con)
My Lords, there have been very helpful and mainly anxious speeches during this debate. I am very grateful to my colleagues but also to the noble Baroness, Lady Carberry, whose speech this afternoon was probably the most enlightening and helpful. I say that because throughout her speech she described how improbable it was that anything described in the other speeches would happen. Unfortunately, we do not have the promise of the noble Baroness adjudicating on the claims that will be brought as a result of this clause.
I should declare at the outset that I spent 15 years as a libel barrister specialising in media law and freedom of expression. I am also a commissioner at the EHRC. I know only too well that the law as intended gets misconstrued. If one looks back at the EHRC’s code of practice in relation to equal pay, one sees very clearly that the code, issued under Trevor Phillips, was never intended to be deployed in litigation that has resulted in the bankrupting of Birmingham City Council or in the absolutely constraining circumstances imposed on large companies. It is just not there. Similarly, the reputation of our immigration tribunals is on the floor because they are likewise applying provisions in the Human Rights Act, which we are bound by the ECHR to apply, but they are applying them in subjective, absurd ways that I do not doubt for a minute the noble Baroness, Lady Carberry, would throw out if they were in front of her.
So what are we to do? We know that there is common sense on all sides of this Chamber, but our job is to scrutinise legislation and ensure that, when it gets to a court and to a judge, it can be properly and safely applied. That is why I support some of these amendments: there must be a way, and I beseech the Minister to review this and to look at what anxieties on this side of the Committee could be closed by some of these amendments.
I have done a search of the Article 10 case law under the human rights and European legislation where there has been tension in other countries. In France, for example, employees were harassed directly because of smoking outside—only in France, of course. In Germany, it was because they were wearing uniforms while biking. In all those cases, Article 10 rights were protected because the legislation was specifically drafted to say that the harassment was directed at the employee. The original clause here is not safely drafted, which is why I am asking the Minister to look at this again. It is not clear that it is only direct discrimination or harassment of an employee that will be caught by this. That is why we have had so many speeches this afternoon worried about what loopholes are being allowed with the clause as currently drafted. To be compliant with Article 10, we need to tighten it. We need, in this Chamber, to scrutinise it and ensure that the message goes back to the Government that it needs to be tightened.
The other thing that the noble Baroness, Lady Carberry, so beautifully enunciated in her speech was how it ought to be a reasonable perception of the activity that was deemed to be harassment. Again, we would hope that any sensible court would look at that and say, “Yes, absolutely”, but that test is not in the clause as currently drafted. I will read Clause 20, “Harassment by third parties”:
“In section 40 of the Equality Act 2010 (employees and applicants: harassment), after subsection (1) insert … (1A) An employer (A) must not permit a third party to harass a person (B) who is an employee of A”.
There is the first problem: we do not limit the harassment to direct harassment, and we need to do so. To ensure that it will be applied and interpreted by tribunals in the way that the noble Baroness, Lady Carberry, envisages, we need to ensure that that is tightened. Clause 20 goes on:
“(1B) For the purposes of subsection (1A), A permits a third party to harass B only if … the third party harasses B”—
there is still no tightening of the definition of “harass”—
“in the course of B’s employment by A, and … A failed to take all reasonable steps to prevent the third party from doing so … In this section ‘third party’ means a person other than … A, or … an employee of A”.
There is no reference at all in that clause to what test a court is to apply to the perception by the employee of the harassment. All the European cases, by which we are still bound under the ECHR, require an objective test to safeguard our freedom of expression rights under Article 10. What I have heard this afternoon is that there is no dispute between the two sides of this Committee that protecting Article 10 in the balance that happens here is the right thing to do, but that test is not in this clause, which is why these amendments are so important. We need that test and we need the direction of the harassment at a specific person, so that it cannot scoop up the other conversations or any of the other activities that are happening around them. It must be like the French case, the German case and all the other cases, which anyone is welcome to look up as I did. For that reason I support these amendments and beseech the Minister and the Government to look again at this. The way this clause is drafted is of very real concern.
Baroness Carberry of Muswell Hill (Lab)
My Lords, I did not want to interrupt the noble Baroness when she was speaking. However, I refer her to Section 26 of the Equality Act 2010, with which I am sure she is familiar, as an EHRC commissioner. That is where the relevant test is set out.
Lord Fox (LD)
My Lords, this has been an interesting debate. It is difficult to know where to start, so I thought I would do so with a couple of parish notes. To the noble Baroness, Lady Noakes, I say that the young man who was on the other end of her call was required by contract to read out a script. If he had deviated from the script, he would have been dismissed. The noble Baroness was not guilty of harassment, but of a lack of empathy concerning his contract. To the noble Baroness, Lady Deech, I can report that hummus is for sale in the Co-op in Bow. Indeed, following the cyberattack, that was about all it had for sale. To the noble Lord, Lord Londesborough, I say that were he taken to court in the circumstances he describes—though I think that unlikely—for being grumpy in a football ground, all he would have to do was say where he was, and the judge would let him off on mitigating circumstances.
When the noble Lord, Lord Young, was announced as a peer I was very pleased, because I thought he would add something to your Lordships’ House from which we would benefit. To a great extent, that has revealed itself today. Through a cleverly and carefully constructed straw man argument, he has set up today’s debate. That straw man has been paraded, hoisted aloft, by a series of speeches either wittingly or unwittingly misapprehending the purpose of Clause 20. Before I begin to discuss that, though, let me say that I have been worrying about the use of the word “banter”. That word causes me to worry, and I will explain why to the noble Lord, Lord Young. For as long as I can remember, it has been used as a defence: “It was only a bit of banter”. It was only a bit of banter, but what was it? It has been justifying racism, sexism and homophobia since time immemorial. I was very surprised, therefore, that a man who understands words in the way the noble Lord, Lord Young, does, should use that phrase. The alliteration may work; but I am not happy with the word “banter”.
As I understand it, the point of the Bill is not the noble Lord’s straw man of policing personal conversations; the point is to take on the problem of workplace bullying by customers and users of particular facilities, and ensure that the employers adequately defend the workers, particularly those who have to interact with the public and who may otherwise feel exposed.
I would like briefly to drag this debate into the area of the practical reality for many people, often young, who work in industries where contact with customers is unmediated. After graduating, I ran a bar for a year, and I know what it is like for people working in those environments. They are largely in service industries—the very industries that some of your noble Lordships seek to absent from the Bill. My understanding of this part of the Bill is that it aims to protect people from having to withstand unreasonable behaviour. If we were to throw out that objective in the way that some of these amendments suggest, that would be to declare that we do not care about the plight of those employees and how they are treated.
The noble Baroness, Lady Fox, talked about the customer always being right. That is one of the problems. In the past, bosses have taken the side of customers against employees because they need the trade. In a way, the clause seeks to address that. There are other potential economic benefits, too. For example, many people talk a lot about recruitment problems in the service industry. One of the ways of enhancing such jobs would be for potential recruits to know that their employer has their back. Many good employers already do that; but everybody needs to know that there is an expectation across the board that they will be protected.
To echo my cry at the start of Committee, we need to see how the Government expect this to operate. Here, I join forces with the noble Baroness, Lady Noakes. We need to see what the draft regulations will look like and understand how the guidelines will interpret those regulations, so that your Lordships can be calmed and brought down from the current position.
Lord Murray of Blidworth (Con)
My Lords, before my noble friend speaks from the Front Bench, I wonder whether I might contribute. I apologise to the Committee that I did not leap to my feet prior—
Lord Fox (LD)
Was the noble Lord in the Chamber at the beginning of the debate?
Lord Murray of Blidworth (Con)
I was—I was sitting over there. I apologise to the noble Lord, Lord Fox, for speaking after him. I am sure he is welcome to speak after me if he disagrees with anything I have to say.
Obviously, I am a barrister, as are many of the contributors this evening. I practised in the employment tribunal and in human rights, and I am a member of the Joint Committee on Human Rights. The Joint Committee wrote to the Government in respect of the Bill, expressing concerns that were reflected by the Equality and Human Rights Commission: in particular, the potential for a conflict between the right to freedom of expression, guaranteed by Article 10—as we have heard from various noble Lords—and the Article 8 right to a private and family life. That balancing exercise would be difficult for many employers to carry out.
The previous iterations of measures of this type included safeguards which have been omitted from the Bill, as the noble Lord, Lord Young, pointed out. In the Worker Protection (Amendment of Equality Act 2010) Act 2023 there was a measure that sought to place a duty on employers to take reasonable steps to prevent sexual harassment of their employees, and which is now Section 40A of the Equality Act. During its passage through Parliament, that Bill included provisions which sought to introduce a duty on employers to prevent non-sexual harassment of their employees by third parties. That was Clause 1 of that Bill, as brought from the House of Commons. That provision failed. It would have required all reasonable steps to have been taken to prevent harassment of the employee, solely because they did not seek to prevent the expression of an opinion in circumstances where the conduct constituting harassment involved a conversation in which an employee was not a participant.
In short, the Government have so far failed to answer the question from the Joint Committee about their reasoning for not including a similar carve-out for overheard opinions in the new duty in Clause 20. That was echoed in the original iteration of the Equality Act 2010, passed by the previous Labour Government, under Section 40(2) to (4). That would have required an employer to be liable for third-party harassment where they had failed to take such steps as would have been reasonably practicable to prevent the harassment. However, to be liable, the employer would have had to have known that the employee had been harassed by a third party on at least two other occasions.
The Government have decided not to adopt the same three-strike policy taken in the equivalent provisions or in the earlier potential measure proposed in the 2023 Act. Instead, we have a rule-making power that is said to provide what steps are to be regarded as reasonable. To my mind, that sits uneasily with the mandatory terms set out in new subsection (1A). For those reasons, it should not be part of this legislation.
Lord Sharpe of Epsom (Con)
My Lords, I thank my noble friends Lord Young of Acton and Lady Noakes very much for their expert, valuable and important introductions to and insights into this group. I also thank my noble friends Lady Meyer, Lady Lawlor, Lady Cash, Lord Strathcarron, Lord Ashcombe and Lord Murray for their practical, legal and philosophical objections to Clause 20, which, as noble Lords will perhaps not be surprised to know, I do not regard as straw-man arguments. It was also wise of my noble friends to note that these amendments have the support of UKHospitality. They also have the support of the British Beer and Pub Association.
These amendments are vital in ensuring that we do not inadvertently restrict fundamental rights of free expression in the workplace and beyond. We all recognise the importance of protecting employees from harassment. It is not about not caring about their plight, as the noble Lord, Lord Fox, implied; it is about also ensuring that we are not creating a framework that stifles open and honest conversation. That is especially true in matters of political, moral, religious or social debate.
Clause 20 as it stands is, as my noble friend Lady Cash pointed out, poorly drafted and therefore risks leading to unintended consequences. In fact, I agree with the comments of the noble Baroness, Lady Deech, about the speech from the noble Baroness, Lady Carberry, who made a very persuasive case that Clause 20 is superfluous in its current form.
The inclusion of speech or conversation that simply expresses an opinion on a political, moral, religious or social issue would lead to significant restrictions on individuals’ freedom to speak openly. This could lead to employees feeling that they cannot express their thoughts and ideas or, perhaps worse, would be penalised for expressing an opinion that someone else may find uncomfortable or offensive. As my noble friend pointed out, we must be mindful of the unintended consequences that could arise from an overbroad definition of harassment. Both he and the noble Lord, Lord Londesborough, gave strong examples from the footballing world. If I may speak as a fellow West Ham United fan, I am very aware that being a supporter of that august club can be a very testing experience that can drive one to the occasional profanity.
It is not just in sports that these concerns arise. Think about public spaces such as pubs, about which we have been hearing. If an individual overhears a conversation that they find offensive or upsetting, where does the line lie? What happens if somebody misunderstands something that is said and it is taken to an employment tribunal as a case of harassment? In such situations, the burden placed on employers would become unreasonable. Would they be required to intervene every time someone overhears an opinion that they find discomforting or just dislike?
If I may ask a genuine question, how are people supposed to judge, to quote the noble Baroness, Lady Carberry, whether a conversation is obviously fake or not? As my noble friend Lord Young and the noble Lord, Lord Londesborough, argued, are we expecting publicans to make finely calibrated judgments on ECHR Article 10 in particular? We should remember that even senior police officers, who are trained in these matters, often struggle to make such judgments. Employers will inevitably err on the side of caution and that is chilling.
I believe that we must ensure that harassment in this context remains focused on behaviours that are truly indecent or grossly offensive, not on speech that is merely uncomfortable or challenging. People must have the right to engage in conversations, to express differing opinions and to debate issues of public importance without the fear of being accused of harassment. To allow an employer to be forced or encouraged into silencing this kind of expression would be a serious violation of freedom of speech, which is a cornerstone of our democracy and society.
The amendments before us offer balance. They ensure that employers are not required to protect their employees from hearing or overhearing expressions of opinion, provided that those opinions are not indecent or grossly offensive. This is a reasonable and sensible approach. It respects individuals’ rights to express their views without creating an environment where every opinion has the potential to be deemed harassment.
Moreover, these amendments recognise the specific context in which such protections should apply. By excluding certain sectors, such as the hospitality industry, sports venues and higher education, we acknowledge the diverse nature of these environments where debate, disagreement and the expression of differing opinions are often the fabric of daily life. To apply the same strict rules in these settings as we would in an office environment or a more controlled space would be misguided. The noble Lord, Lord Fox, may well say that this is not the purpose of Clause 20. However, as my noble friends Lady Cash and Lord Murray pointed out, the drafting means that that is unlikely to be the effect.
The requirement for repeated instances of harassment before an employer must take action, as outlined in Amendment 86, aligns with the principle of proportionality. We should not expect employers to become the arbiters of every comment or opinion expressed, especially when such comments are made in good faith. The amendment rightly recognises that harassment should be defined as something that occurs repeatedly, not something that might result from a single isolated incident of disagreement or discomfort. I agree with my noble friend Lord Young of Acton that this is a solution in search of a problem or, based on his statistics, a sledgehammer in search of a nut.
When the Minister responds, can she please answer my noble friend Lady Noakes’s point on territorial extent? These issues are clearly not going away, so I urge the Government to take them very seriously. As it stands, Clause 20 is garbled and needs rewriting.
Baroness Jones of Whitchurch (Lab)
I thank all noble Lords who have spoken. I hope I can reassure the Committee of the Government’s approach, as well as set straight some considerable misunderstandings on how the provisions will operate. I stress at the outset that the provisions in the Bill will protect employees while preserving existing human rights, such as freedom of speech, which I hope we can all agree are core British values. Also core to our identity is the belief that with rights come responsibilities.
I will first address the noble Lords, Lord Young of Acton and Lord Strathcarron, and the noble Baroness, Lady Fox, who oppose Clause 20. I am grateful to the noble Lord, Lord Young of Acton, for meeting me to share his views. When we met, he pushed his position that our proposals are anti-banter, and he has reiterated that today. I make it clear that we are anti-harassment, not anti-banter, and this is what Clause 20 delivers.
I agree with the noble Lord, Lord Fox, that I feel that we have been subjected to a wave of synthetic rage by many on the other Benches this evening, who have given examples that simply would not be covered by the harassment provisions in Clause 20. Removing Clause 20 would not only go against the manifesto on which this Government were elected but deprive employees of protection from all types of harassment by third parties under the Equality Act 2010. This Government are committed to tackling all forms of harassment in the workplace. In order to make workplaces safe, we must require employers to create and maintain workplaces and working conditions free from harassment, including by third parties.
For example, if a woman is sexually harassed by a customer at work today, she has very few effective options by which to seek legal redress, even if her employer has made no effort whatever to address the issue. The only possible employment law action in this scenario at present is for the Equality and Human Rights Commission to exercise its unique enforcement powers against the employer. However, such powers can be used only very selectively and strategically by the commission, and would be unlikely to be used in anything other than an exceptional case.
Sexual harassment is, sadly, not the only type of harassment that is experienced in the workplace. Employees can experience racial harassment or harassment related to their disability or other protected characteristics. In the case of non-sexual harassment, not even the possibility of enforcement exists at present. As such, Clause 20 is required for employees to be able to seek legal redress where they have experienced third-party harassment, and to ensure that employers are clear about their responsibilities.
Baroness Fox of Buckley (Non-Afl)
I would like some clarity. There is some confusion over what the definition of harassment is in law. If you asked whether I was for the harassment of employees and workers, I would of course reply that I am not, but we have to look at the way the law defines harassment, particularly indirect harassment and some of the issues that were raised.
Despite the noble Lord, Lord Fox, imagining that we have all been whipped up into some synthetic rage by the noble Lord, Lord Young, because we are incapable of working out for ourselves what we think about a piece of legislation, there is concern about free speech. I am confused about what the Minister is saying free speech is. She keeps saying that we cannot allow unacceptable behaviour. Is that part of the legislation? What unacceptable behaviour is she referring to? Is it detailed in the law? Which things is she talking about? It is one thing to say that a football team has rules, but have the Government come up with a new behaviour code in this Bill that society must adopt? If they have, I have not seen the details.
Baroness Jones of Whitchurch (Lab)
There is harassment, and what we are debating now is third-party harassment. Obviously, tribunals would have to take into account the practicality of enforcing third-party harassment, and I have been trying to set out the grounds on which it would be considered either reasonable or unreasonable. That would have to be considered case by case, but nevertheless the issue is very different from an employee’s absolute right not to be harassed directly in the workplace.
Baroness Lawlor (Con)
I am a bit puzzled as to how the tribunal will measure this alleged harassment, given the different interpretations that could be put on it. There are some conflicts, as we have heard today.
Baroness Jones of Whitchurch (Lab)
I thought I had explained that in my description, and I do not really want to have to repeat it. I explained the grounds that would be considered when comparing harassment with acceptable behaviour.
Amendment 85 also seeks to significantly reduce the scope of Clause 20 by excluding the hospitality sector, sports venues and higher education. This would create a disparity and a hierarchy of protections across employers and sectors, leaving swathes of employees without equal protection. This cannot be justified, given that employers in these sectors will be required only to do what is reasonable, and this will depend on their specific circumstances.
Amendment 86 seeks to reinstate the three-strike rule that was repealed in 2013. However, as I have explained, an isolated or one-off incident is much less likely to amount to harassment than continuing acts. The recent Free Speech Union campaign against this clause stated that
“when the Equality Act was originally passed, it included a clause making employers liable for the harassment of employees by third parties, but it was repealed in 2013 because it proved to be so costly and difficult for employers to comply with. We mustn’t make the same mistake again”.
We agree that we should not make that mistake again. We cannot see why the noble Lord, Lord Young of Acton, would wish to impose on employers the unnecessary costs and burdens that this amendment would bring. By contrast, the Government’s approach will make it simpler for employers to understand their obligations and will ensure that victims can be confident that they are protected by law.
Lord Murray of Blidworth (Con)
In relation to the last passage of the Minister’s speech, it appears to be the Government’s position that it is not accepted that carve-outs for three strikes are necessary because that would impose a burden on business. The Explanatory Notes to the Bill, and to the Equality Act, specifically state that in determining the effect of the unwanted conduct, courts and tribunals must balance competing rights on the facts of a particular case—the point that the Minister has just made. Will she not accept that the effect of the provision, as presently drafted, will be for a sensible employer to take overly defensive approaches to prevent actions being brought against them under these provisions? It is that reaction which will cause a stifling of free speech, and this Committee should be very worried about that.
Baroness Jones of Whitchurch (Lab)
My Lords, I cannot see why we should carve out some of the most customer-facing sectors, where the sorts of harassment we are talking about are probably more prevalent. I cannot see the point of that. Surely every employee in this country has the same right to be protected from harassment, and that is what we are attempting to achieve. Most of the pubs and sports grounds that I frequent already have these policies, so it is a minority of pubs—obviously the sorts of pubs that the noble Lord, Lord Young, likes to go to—that do not have them. I think most people would like to frequent places where they feel that the employees are treated with respect and are protected.
Baroness Noakes (Con)
My Lords, can the Minister explain why Clause 21 gives power to the Secretary of State to make provisions in relation to reasonable steps only for sexual harassment and not non-sexual harassment? I think she said something about it being an area in which there is evidence that this would be useful—I cannot remember her exact words. I cannot understand why the Government have not extended the logic of giving assistance in this area to tribunals beyond sexual harassment, especially given the broadening of the extent of non-sexual harassment by including third parties.
Baroness Jones of Whitchurch (Lab)
My Lords, I can say only that it is for the reasons I have outlined previously in my speech. We want to make sure that where we broaden the protections, it is done on a very careful basis and achieves the desired effect.
Baroness Noakes (Con)
We are not talking about broadening protections; we are talking about setting out what constitutes reasonable steps in the case of sexual harassment, which is included in Clause 21, and other kinds of harassment, which, incomprehensively, are not included. I am simply asking why the Government have gone down that particular route.
Baroness Jones of Whitchurch (Lab)
My Lords, the easiest thing is for me to write to the noble Baroness to explain this. It is obviously based on previous experiences of case law and so on. I will write to the noble Baroness.
Her previous question was about the Bill’s jurisdiction over overseas employees. While I cannot necessarily speak to the example that she raised, the Bill does not broaden the jurisdiction of employment tribunals beyond their current jurisdiction over any overseas employees. The situation will remain as it stands.
Baroness Noakes (Con)
Can the Minister explain what the current jurisdiction is? What is the current territorial extent for all tribunal cases?
Baroness Jones of Whitchurch (Lab)
My Lords, I presume that it is where employees are based here in the UK, but if I am wrong I will write to the noble Baroness and clarify that.
In conclusion, I am grateful to all noble Lords for tabling these amendments but, for the reasons set out, the Government cannot support them. The Government are on the side of workers, not abusers. We will ensure that workers have the fair protections at work that they deserve. I therefore ask that Amendment 83 is withdrawn and that Clause 20 stands part of the Bill.
Lord Fox (LD)
I asked the Minister to set out in detail how future regulations and these clauses will work in practice. I hope she is able to take that on board between Committee and Report.
Baroness Jones of Whitchurch (Lab)
My Lords, I will attempt to update your Lordships’ House on these issues at the time the noble Lord has suggested.
Baroness Deech (CB)
Can I ask the Minister about one very troubling case, which I am sure is known to everybody? Professor Kathleen Stock of the University of Sussex faced three years of undoubted bullying and harassment because she held and still holds gender-critical views. She was bullied and harassed by students and other staff, which resulted in her resigning. The university was fined by the OfS for breaches of freedom of speech but still believes, according to the vice-chancellor, that being fined was wrong and that free speech was being hindered by—presumably—Professor Stock having to resign. How would Clause 20 affect this well-known situation—Professor Stock bullied for three years because of her gender-critical views? The university, like all universities, has signs everywhere saying, “We do not tolerate abuse” et cetera, but I do not know whether that does much good.
Baroness Jones of Whitchurch (Lab)
My Lords, I do not think it is appropriate to talk about an individual case, but can I make it absolutely clear here that we are committed to defending free speech and upholding academic freedom? The significant penalty showed that the Office for Students will take robust action where universities fail to do so. If you go to university, you must be prepared to have your views challenged, hear contrary opinions and be exposed to uncomfortable truths. We recently announced that we are giving the OfS stronger powers on freedom of speech. The sector needs to take academic freedom and freedom of speech seriously. We hope that the OfS report and regulatory action will incentivise providers to fully comply with their freedom of speech duties.
Lord Young of Acton (Con)
My Lords, I thank noble Lords on all sides of the Committee who have contributed to an excellent debate. Just on the final point made by the Minister, the Government’s commitment to academic freedom and free speech and upholding them in universities was not particularly clear at the beginning of the Government’s term. Bridget Phillipson torpedoed the Higher Education (Freedom of Speech) Act within days of getting her feet under the desk and agreed only reluctantly to implement some of the clauses that were due to be implemented last year, on 1 August, thanks to a judicial review brought by the Free Speech Union.
I am not sure that the Minister responded to the very good question that my noble friend Lady Noakes asked about whether the liability of employers for third-party harassment would extend to their employees overseas.
I would like to respond in a bit of detail to the points made by the noble Baroness, Lady Carberry of Muswell Hill. One of the safeguards she mentioned against the overapplication of Clause 20 is that only an employee with the relevant protected characteristic could sue if they had been offended or upset—if they felt harassed—by virtue of that protected characteristic. But that is not quite accurate. You do not have to have the protected characteristic in question to sue your employer for failing to protect someone with that protected characteristic from being harassed, as established in the case of English v Thomas Sanderson Ltd, in which someone successfully sued their employer in the employment tribunal for not protecting a notional employee with the relevant protected characteristic, when she herself did not have that protected characteristic.
The noble Baroness also said she thought it very unlikely that an employee could sue their employer for failing to take all reasonable steps to protect them from overhearing remarks, jokes, expostulations et cetera made by customers or members of the public. But in the case of Sule v Shoosmiths in the employment tribunal, a woman did successfully sue her employer, Shoosmiths, for a conversation she overheard about immigration. She was a Nigerian lady and she overheard a conversation —not directed at her—which she found upsetting or offensive by virtue of her protected characteristic. If that woman had been employed in Downing Street and had overheard a conversation between the Prime Minister and his aides last week about the speech the Prime Minister was about to give about immigration, it may well be that she could have sued the Civil Service for not taking all reasonable steps to protect her from being harassed in that way—overhearing a conversation about immigration that she found offensive or upsetting.
If the noble Baroness, Lady Carberry, sincerely believes that Clause 20 is not intended to be invoked to ban banter, why not accept Amendment 88, which would exempt employers from being sued for indirect third-party harassment? We have heard the argument over and over again on the other side of the Committee that the amendments that my noble friends and I and other noble Lords have suggested as ways of improving the Bill and clarifying exactly what steps employers would need to take to protect their employees from third-party harassment are completely unnecessary because the clause is not intended for things such as overheard conversations—banter—to be in scope. But it seems a little naive to imagine that the clause will be applied only in ways that the Government currently intend. What about unintended consequences? The noble Baroness said that she was not anti-banter, just anti-harassment. I am anti-unintended consequences. If you want to avoid those unintended consequences materialising, these vexatious complaints being brought in the employment tribunal or eccentric decisions being made by the tribunal, why not clarify exactly what the limits of employers’ liability are by accepting some of these amendments?
The noble Lord, Lord Fox, accused me of erecting a straw man and said that I was trying to generate synthetic rage about the risks I claim arise from this clause. Well, it is not synthetic—it is real. I know this because the Free Speech Union has taken on at least five cases in which people have been silenced because of a misunderstanding about the scope of the Equality Act due to a belief that the Equality Act, as it stands, requires employers to protect their employees from third-party harassment.
The noble Baroness, Lady Fox of Buckley, mentioned that one of the likely consequences of this clause is that gender-critical feminist groups might find it difficult to book spaces in pubs and other venues for fear that trans and non-binary employees of those venues might object that merely inviting women with those views into the pub would constitute a form of harassment. That has happened three times. We have cases of gender-critical feminist groups being ejected from pubs because the managers have misunderstood what their responsibilities and legal duties are under the Equality Act. They believe that those duties extend to protecting their trans and non-binary employees from being harassed by allowing third parties to discuss views they find offensive, deeply upsetting or disagreeable.
Lord in Waiting/Government Whip (Lord Katz) (Lab)
My Lords, I respectfully point out that we have now had more than two hours on this group of amendments and that we have just come up to 12 minutes for the response to this long debate. A fair person would say that this is excessive free speech. I respectfully ask the noble Lord to bring his remarks to a conclusion, so that we can make some progress.
Lord Young of Acton (Con)
I will bring my remarks to a conclusion. Sorry, I thought I had 15 minutes. I misunderstood.
Lord Young of Acton (Con)
Oh, I do, apparently—and there have only been 12 minutes. But I will not use my allotted time of three more minutes.
I conclude by saying that the risk of over-application of this clause—by hospitality sectors, in football grounds and in our universities—is not a straw man. We see that risk materialising due to a misunderstanding— an imagining—that third-party harassment is already part of the Equality Act, when it is not. That risk will multiply when this clause goes on the statute book. It is not a straw man or confected rage. If the Government think it is a straw man—if they are absolutely convinced that none these risks will actually materialise—at the very least they should make that clear by accepting these amendments. They are losing nothing if they think they do not rule out of scope stuff that they do not want to be in scope in any case. I urge them to accept the amendments for the sake of clarity and for the sake of employers.
I will make one final point. When the noble Baroness—
Lord Cromwell (CB)
I think the noble Lord has misunderstood that his 10 to 15 minutes were for his earlier contribution, not for responding to the Minister. He has made some really good points a number of times now. Can we have a break, please?
Lord Young of Acton (Con)
Okay, I will wind up.
I will make just one final point. The Minister said that, in due course, the employment tribunal will make it clear that reasonable steps with respect to protecting employees from harassment will not be the same steps that employers are expected to take to protect their employees from third-party harassment, as opposed to employer-employer harassment. That may well be the case, but what that amounts to saying is that the jurisprudence in the employment tribunal, when it comes to the definition of harassment, will not be a particularly reliable guide for employers, when it comes to how they should define harassment when protecting their employees from third-party harassment. What she is saying, in effect, is that, if you cannot rely on the definition of what a reasonable step is in the ET hitherto, employers will be in the dark. They will have to chart these uncharted waters. Would it not be helpful to employers—and a boon to the beleaguered hospitality sector industry in particular—to make it clear, by accepting these amendments, what their liabilities are and are not?
Finally—
Lord Young of Acton (Con)
I was going to say the final words: I beg leave to withdraw my amendment.