Employment Rights Bill

Baroness Noakes Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

If Clause 20 is unamended, it will plunge employers into a legal quagmire, force them to spend a fortune on obtaining and then implementing legal advice and inevitably have a chilling effect on free speech in those very places—pubs, bars, restaurants, football stadiums and universities—where people should be free to speak their minds. Who will bother to pop into their local for a drink if there are banter bouncers in every beer garden, a pronoun policy on every wall and the need to produce proof that you have had DEI training before you can get served? If this clause ends up on the statute book unamended, the only growth it will achieve is in the debt restructuring business, in law firms specialising in equality law and, above all, in the dole queue. I beg to move.

[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.

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The noble Baroness, Lady Noakes, also seeks to extend requirements to other forms of harassment under Section 26 of the Equality Act 2010. This would broaden the intended scope of the regulations under this power, which is to assist the employment tribunal when considering whether an employer has taken all reasonable steps to prevent sexual harassment. Any such broadening would require careful consideration and consultation with employers, or would otherwise risk unintended consequences. That is why we will ensure that any regulations that are made add clarity for employers and employees, hoping to avoid the need for claims being brought to an employment tribunal at all.

[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.