Employment Rights Bill (Ninth sitting)

Peter Bedford Excerpts

Committee stage
Tuesday 10th December 2024 Public Bill Committees

We are also worried about the burdens of the third-party harassment provisions on pubs and the hospitality sector. They already have to contend with increased employer’s national insurance contributions and with the possible loss of small business rate relief; there is now a risk that they will have to become responsible for some form of policing. I am not referring to areas that I have already spoken about, such as sexual harassment, which should absolutely be cracked down on, criminal forms of racial abuse, abuse of someone’s sexuality or whatever it might be; I mean areas that get into the realms of free speech. There are some jokes that may be told in pubs and are probably not funny, but do not stray into the very serious categories that I have spoken about. It will put a burden on pub, restaurant or bar owners to somehow police that which most of us, under a reasonability test—but not guaranteed under a reasonability test—would call more innocent banter.

[Mr Peter Bedford (Mid Leicestershire) (Con)]

It is a pleasure to serve under your chairmanship, Mr Mundell. On the point about the hospitality and pubs sector, on which I held a debate in Westminster Hall a few weeks ago, there is real concern about this part of legislation, in particular about freedom of expression and freedom of speech. Does my hon. Friend agree that one consequence of the legislation might be that industry take actions beyond those intended? For example, people might self-censor beyond what could be seen as an off-colour or offensive joke, because they are scared that they could be held liable later for not protecting their employees. My hon. Friend gave an example, but another one is a comedy club, which would be conscious of and concerned about who they invite to entertain because of the perception that some of their staff could be offended, and the reasonableness of how that could be interpreted in the context of harassment. Does my hon. Friend agree that this is a concerning unintended consequence of the legislation?

[Greg Smith]

My hon. Friend is right that there needs to be greater clarity about that which is already covered in criminal law—sexual harassment, direct racial abuse or abuse to someone on the basis of their sexuality, which clearly has to be actioned under criminal law and it must be ensured that the perpetrators are brought to justice—compared with satire or cutting jokes. Those are things that do not stray into the criminal, but perhaps some people might be offended by them, for whatever reason.

There are quite a lot of comedians openly talking about whether comedy is in fact becoming a thing of the past in this country. They are finding themselves unable to tell jokes that, while not going into the criminal, do risk offending some people. If that ends up shutting down comedy clubs or open-mic nights in pubs, it would be an unintended consequence that I cannot imagine the Government would want to bring about.

Employment Rights Bill (Tenth sitting)

Peter Bedford Excerpts

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[Alex McIntyre]

I thank the hon. Member for setting out the difference. The difference is the “all reasonable steps” test. If an employer harasses someone in the workplace, there is no “all reasonable steps” test that they can take; for a third party, there is.

In tribunals, “reasonable” takes into account, for example, the circumstances of the case, the size of the business, the sector it operates in, the policies it has in place and the training it provides for employees. These points of reasonableness are taken into consideration in tribunals every single day in other areas. For example, there is already a test in section 109 of the Equality Act that deals with a defence that employers have. They cannot be held liable for the actions of their employees if they have taken all reasonable steps to train their employees to avoid issues such as discrimination in the workplace.

[Mr Peter Bedford (Mid Leicestershire) (Con)]

The hon. Member mentions reasonable steps being taken by small businesses. Does he accept that an impact assessment on the consequences of bringing in this kind of legislation for these businesses should be conducted up front, so that businesses can at least understand how much time and money it will cost them and how much additional bureaucracy it will create for them?

[Alex McIntyre]

The Minister will answer about what the Government are doing on impact assessments, but the impact on small businesses is that they have to think a little bit about harassment in their industry. That will vary from business to business. Some small businesses are not public facing. The impact in a small café will be different from that in a small office, because of interactions with the general public, but I do not think it is unreasonable to ask a small café or a small bar to think about what they can put in place to deal with someone coming in and abusing or harassing staff.

Again, if somebody comes in and is abusive, these provisions will not necessarily be triggered, because the abuse and unwanted conduct has to be related to their protected characteristic. I know from closing up a number of Christmas parties when I worked in hospitality that people get a bit out of hand. That was not harassment under the Equality Act; it was because people were drunk and disorderly, which is a separate antisocial behaviour issue. There are different channels to deal with that. We are talking here about specific cases where there is abuse of people because of a protected characteristic. Those are very narrow circumstances where people have to think about what kind of policies they have in place.

The hon. Member for Chippenham spoke about how MPs would not operate in similar circumstances. We would not, for example, be alone with individuals in a private room. It is appropriate to have policies in place where we try to think about some of the circumstances.

This proposal does not use the word “requires”, and it does not say that every single step has to be taken—it mentions “all reasonable steps”. That is part of the tribunal, and there will be guidance to set out some examples of things that employers can do to take reasonable steps. It is really important that we do not create a two-tier system where we say that small employers do not have to deal with these issues, because actually it is often in small and medium-sized enterprises that some of this bad behaviour takes place.

I gave an example last week. I went to my boss and said, “I have just been groped by a midwife and was told, ‘I’m going to show you a thing or two’”. When I said that I was only 15 years old, my boss said I should enjoy it: “You are a bloke. Go back in there. Toughen up.” That is not acceptable. Actually, a reasonable step in those circumstances would be the manager saying, “Alex, why don’t you go and work in another part of the business for the rest of the week? Work on the bar this evening, rather than in the function.” It is about having a policy that deals with those kinds of incidents in the workplace. There are different steps that businesses can take.

Let me move on to the argument around free speech, which the Minister talked about at great length. I have set out how some of his arguments do not apply in this instance as this provision is about specific incidents of harassment under the Equality Act. A point that the shadow Minister might have raised that would perhaps have been more legitimate is cases where two protected characteristics are in play. A lot of the free speech cases that have made the press have engaged with two. For example, in some cases someone has expressed their religion, but that might be opposed to someone expressing their sexual orientation; or people have expressed protected views on gender-critical theory, but others have a protected characteristic of a different gender identity.

Those are difficult cases, which can go all the way to the Supreme Court. What is important to note, however—this is where the shadow Minister could have gone, to give us a stronger discussion—is that if we are at the stage where the Supreme Court has to give an opinion on these things, no tribunal in the land will say, “Well, an employer should reasonably have seen that and therefore taken reasonable steps to avoid such scenarios happening.” No, this is the exact example of where tribunals will take “reasonable steps” and say, “What is reasonable in these circumstances for these employers?”

Having represented the NHS for a number of years as an employment lawyer, I should point out that the A&E example that was given unfortunately did not make any sense. First, the NHS operates a zero-tolerance approach. In several instances, policies are in place where individuals can withdraw their support for someone if they are being abused in the workplace. Scenarios and planning are in place to make sure that everyone is looked after, without people being subjected to harassment in the workplace.

To sum up, “all reasonable steps” does not mean that an employer has a duty to stop something altogether. We have to be sensible. There is no point scaremongering so that individuals think this will have a broader impact, closing all comedy clubs and stopping people making jokes in the workplace. That is not the case. This is about specific examples of harassment under the Equality Act—that has to be unwanted conduct related to a protected characteristic, creating an offensive, hostile, degrading or humiliating environment. These are specific examples. It is important that we extend this to third parties, given all the evidence we have heard, and I encourage everyone in the Committee to support the legislation.