Employment Rights Bill

Baroness Fox of Buckley Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

[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.

--- Later in debate ---

Do noble Lords think that this has had a chilling effect on free speech in this place?

[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.