Clause 20 of Labour’s Employment Rights Bill, which is currently being debated in the House of Lords, may meet some opposition, with some feeling that this law has gone too far.
Known as the ‘banter ban’ it seeks to make employers liable for failing to take “all reasonable steps” to prevent an ‘intimidating, hostile, degrading, humiliating or offensive environment’ for people with protected characteristics like disability, religion or sex. Covering customers, clients and other third parties, it means that shops, restaurants, pubs, football matches and other public events could also be subject to tighter and more restrictive rules, if this law comes into effect.
There’s no disputing that it’s an impossible task to balance safeguarding staff and upholding free speech. Whilst the Government maintains they are simply strengthening workplace protections to tackle harassment and protect employees from intimidating and hostile abuse as well as sexual harassment, opponents are worried that if the law is passed, it will mark the end of free speech.
Do not over-interpret the legislation
Lord Young of Acton, founder of the Free Speech Union, is worried that has it will have a “chilling effect” upon free speech, stifling casual conversations and everyday social interactions in public spaces like pubs and at football matches, creating an atmosphere of heightened scrutiny and self-censorship.
He has proposed a few amendments to the draft legislation to exempt expressions of political, moral, religious or social opinions from being classified as harassment, providing they are not “indecent or grossly offensive. In addition Lord Action is worried that ‘without such protections, employers – particularly in higher education, hospitality and other public-facing sectors – could be held responsible for policing casual conversations, potentially infringing on freedom of expression.’
His concerns have also been echoed by the Equality and Human Rights Commission (EHRC), which warned that the current wording of the clause is too vague and may lead to “excessive limitations” on open debate. They have asked the government to provide “guidance for employers not to over-interpret the legislation.
What can you do to protect your business?
Whether the law is accepted without amendments or with some subtle changes, employers need to be prepared, proving that they have taken all reasonable steps to prevent harassment from happening. We this in mind we recommend that you:
- Develop up to date and comprehensive anti-harassment policies that clearly define what constitutes bullying, harassment, and discrimination
- Provide regular training on harassment and bullying to equip employees with the knowledge and skills to recognise and address harassment
- Establish clear reporting channels and procedures so that any claims of bullying or harassment can be dealt with effectively
- Investigate any complaints promptly and thoroughly
- Encourage a workplace where employees feel comfortable and respected
- Challenges in defining ‘reasonable steps’
However, policing of some third party behaviours, like clients who may only visit a business premise once a year, shoppers, or pub and restaurant customers having a conversation which is overheard, may prove to be difficult. For example, could a pub owner be held liable for offensive remarks made by customers within earshot of employees?
How I can help
For advice and support when it comes to updating processes, procedures and policies, please email caroline.robertson@actifhr.co.uk