Toby Young: Pub ‘banter’ might just be chat or it might be offensive- but penalising the Landlord for it is a joke | Conservative Home

Lord Young of Acton is Founder and Director of the Free Speech Union and a Conservative peer. 

In the House of Lords earlier this week, I tabled various amendments to Clause 20 of the Employment Rights Bill – or, as I prefer to call it, the ‘banter ban’.

Clause 20 will amend Section 26 of the Equality Act to make employers liable for the “harassment” of their employees by third parties, i.e., members of the public. If it goes through unamended, employers will have to take “all reasonable steps” to protect their employees from being “harassed” by their customers and if they fail to do so they could be sued in the Employment Tribunal.

There are so many good reasons to oppose this clause, it’s difficult to know where to start. But before we get to them, it’s worth clarifying that it won’t impose a duty on employers to protect their employees from third-party sexual harassment. Employers are already liable for that, thanks to the Worker Protection Act 2023.

Let’s begin with this: where’s the evidence that non-sexual third-party harassment is a problem in Britain’s workplaces?

For that, we have to turn to a fact sheet produced by the Office for Equality and Opportunity and the Department for Business & Trade published last year, which says:

“For the year ending March 2024, 9.2 per cent 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 per cent of the respondents in that survey reported experiencing non-sexual harassment in the workplace – and 9.2 per cent of 5.5 per cent is of course 0.51 per cent.

As the Equality and Human Rights Commission (EHRC) said in its parliamentary briefing on this Clause ahead of the Bill’s second reading in the Lords: “Evidence of the prevalence of third-party harassment in the workplace, beyond sexual harassment, is limited.”

“Limited” is a polite way of saying virtually non-existent – 0.51%.

The entire Bill has been described as a solution in search of a problem – and of no clause is that more true than this one.

That isn’t just my opinion and that of the EHRC. That’s also the view of the Regulatory Policy Committee, which said in its report in November of last year that there was insufficient evidence that non-sexual third-party harassment was a problem that required a legislative solution.

I’ve described Clause 20 as the ‘banter ban’ because it will mean employers having to protect their employees from overhearing jokes or opinions or expostulations that they might find offensive by virtue of their protected characteristics. To give a topical example, take a football fan who shouts “are you blind” at a referee who’s just failed to penalise a goalkeeper for handling the ball outside his 12 yard box.

If the club employs a partially sighted steward, he could take the club to the Employment Tribunal for not taking all reasonable steps to protect him from having to overhear that remark.

So, to limit its liability, the club will have to ban banter such as this. In other words, if Sir Keir Starmer has his way, every stadium in the country will become a library, not just his beloved Arsenal.

Defenders of Clause 20 accused me in the Lords of erecting a straw man.

Surely, it won’t mean employers having to protect their employees from overhearing banter? One Lib Dem peer used the phrase “synthetic outrage”. But if we look at how the Employment Tribunal has defined the harassment provisions at Section 26 of the Equality Act, “harass” does include overheard remarks.

In Shule vs Shoesmiths, a Nigerian woman successfully sued her employer – a prestigious law firm – for failing to protect her from overhearing a conversation on immigration which she found offensive by virtue of her race, a protected characteristic. Alarmingly, a claimant doesn’t even have to have the protected characteristic in question to bring a successful claim. In English vs Thomas Sanderson Ltd, it was established that you can sue a firm for discriminating against gay people even if you’re not gay.

It follows, that employers will have to take all reasonable steps to protect all their employees from overhearing banter, not just those bristling with ‘protected’ characteristics.

That will place a huge burden on employers, particularly small and medium sized enterprises like family-owned pubs.

The Campaign for Real Ale estimates that pubs are closing at the rate of 37 a week. How many more will have to close when owners factor in the cost of taking legal advice about how to comply with this clause and then implement that advise?

The Government describes the Employment Rights Bill as pro-growth, but for many small businesses struggling to make ends meet, particularly in the hospitality sector, having to employ ‘banter bouncers’ to police customers’ conversations will be the final nail in the coffin. Not surprisingly, both Hospitality UK and the British Beer and Pub Association have raised the alarm about this clause.

When I brought up these concerns at the Bill’s second reading, the Labour Minister on the red benches told me this clause would not have a chilling effect on free speech because there are already safeguards in place to protect freedom of expression, such as Article 10 of the European Convention on Human Rights.

But in its briefing on the Bill, the EHRC had this to say about Clause 20:

“There is a risk that employers will impose excessive limitations on debate and discussion to comply with Clause 20.”

Another argument the Labour minister made is that it will become clear in due course just how light touch this new clause is, as cases are brought before the Tribunal. But the Financial Times reported on 5th May that the backlog of cases in the Tribunal has hit record levels, with a queue of almost 50,000 cases at the beginning of this year – and that will rise significantly when this bill comes into force, thanks to day one employment rights.

At the Free Speech Union, we’re helping one of our members sue his employer after he lost his job for being a member of Reform UK. His case has been scheduled for July 2027. How many small businesses will go out of business while they’re waiting for the Tribunal to clarify what their legal obligations are under Clause 20?

If it’s 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, universities – where people should be free to speak their minds.

Even those hospitality businesses that can afford to comply with this new red tape may soon go out of business.

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 you’ve had DEI training before you can get served?

If this clause ends up on the statute books, the only growth it will achieve is growth in the debt restructuring business, growth in law firms specialising in equality law and growth, above all, in the dole queue.