The Worker Protection Bill and the spectre of the ‘banter police’

The FSU has been briefing MPs on the troubling implications for free speech and freedom of expression of a hitherto little-known Private Members’ Bill proposed by Lib Dem MP Wera Hobhouse, which is only now beginning to attract media coverage (Daily Star,?GMB,?Mail,?Mail,?Sun,?Sun). Thanks to the Government’s support, the ‘Worker Protection (Amendment of Equality Act 2010) Bill’ sailed through the Commons last week and is on its way to the Lords.

As the Bill’s title suggests, the legislation Hobhouse and the government are proposing to amend is the Equality Act 2010, which among other things imposes a legal duty on employers to protect workers from harassment by other employees defined as “unwanted conduct relating to a protected characteristic” (i.e., age, disability, gender reassignment, race, religion or belief, sex or sexual orientation) where that conduct has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”.?

The Hobhouse bill will expand that duty, rendering bosses additionally liable for harassment of their employees by members of the public that they come into contact with while doing their jobs. If we were just talking about, say, sexual harassment, that would be one thing. But this bill actually seeks to extend third-party liability to every type of ‘unwanted conduct’ already prohibited by the Equality Act 2010, including overheard conversations. In other words, if the bill becomes law, employers will have a duty to protect their workers from overhearing ‘upsetting’ remarks made not only by their colleagues, but by third parties as well.

Following pressure from the FSU, the government has amended the Bill so speech that involves “an expression of opinion on a political, moral, religious or social matter” is protected. That’s better, but it’s still not great. What about pub banter and football chants, for instance? As FSU General Secretary Toby Young put it in the?Spectator, “If a barmaid or stadium steward overhears something they find upsetting that relates to a protected characteristic, even if it isn’t addressed to them, they can still sue their employers for harassment.”

The Bill presents a particular challenge to employers with public-facing staff because it makes them legally liable if they fail to take what Clause 1 of the Bill as drafted describes as “all reasonable steps to prevent third-parties” from harassing their employees.

Will employers be required to proactively prevent anything that might constitute harassment? And what might that look like in practice? Will pubs be expected to put up signs saying, ‘No banter allowed’?

Perhaps unsurprisingly, FSU Head Toby Young is now calling on the minister for women and equalities, Kemi Badenoch, to ditch the bill in its entirety. Writing in the?Sun, he pointed out that with hospitality venues struggling to survive rising energy costs, inflation and train strikes, “more red tape is the last thing they need”.

Interestingly, Danny Kruger MP felt there might be another angle to this story. Granted, ‘red tape’ is the last thing some businesses need – but might some companies, following in PayPal’s censorial footsteps, actually embrace the idea of policing their customers in this way? With the legislation before the House of Commons last week, Mr Kruger took to the floor of the House to express concern at the ramifications of Clause 1’s ‘reasonable steps’ with regard to the type of censorship that it might not simply necessitate – Toby’s ‘red tape’ point – but also justify.

The problem, he said, spelling it out, was that “a censorious spirit has entered the soul of organisations that hold power and accountability in our country”, and “what we need to consider in drafting legislation [of this sort] is the actual effect of the law on the people who will be responsible for enforcing it”.

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