Employment Rights Bill

Lord Young of Acton Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

Moved by

[Lord Young of Acton]

83: Clause 20, page 42, line 24, at end insert—
“(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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[A noble Lord]

You do.

[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—

[Noble Lords]

Oh!

[Lord Young of Acton (Con)]

I was going to say the final words: I beg leave to withdraw my amendment.

Amendment 83 withdrawn.