Employment Rights Bill

Baroness Jones of Whitchurch Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

[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.

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[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.

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[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.

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[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.