The UK’s Employment Rights Bill has ignited a contentious debate, particularly surrounding its provisions on third-party harassment. Dubbed the “banter ban” by critics, Clause 20 of the bill proposes that employers could be held liable for harassment of their employees by third parties, such as customers or clients, unless they can demonstrate having taken “all reasonable steps” to prevent such incidents.
It has raised concerns about potential infringements on free speech, especially in public venues like pubs and universities. The bill aims to enhance worker protections across various domains. Key provisions include:
- Zero-hours contracts: Introducing measures to provide more predictable working hours.
- Flexible working: Expanding the right to request flexible working arrangements.
- Statutory Sick Pay (SSP): Reforming SSP to make it more accessible.
- Third-party harassment: Reintroducing employer liability for harassment of employees by third parties, such as customers or clients.
The proposed legislation aims to create a fairer and more secure working environment, addressing longstanding issues in employment law.
The ‘Banter Ban’ Clause Explained
Clause 20 of the bill has attracted significant attention and controversy. It proposes that employers could be held liable for harassment of their employees by third parties, unless they can demonstrate having taken “all reasonable steps” to prevent such incidents.
Critics argue that this provision could infringe upon free speech, potentially requiring venues like pubs and universities to monitor conversations to avoid liability. Lord Young of Acton, founder of the Free Speech Union, has tabled amendments aiming to exempt non-offensive opinions on political, moral, religious or social matters from being categorised as harassment.
Employer Responsibilities and Legal Implications
Under the proposed legislation, employers would need to take proactive measures to prevent third-party harassment. This includes implementing clear anti-harassment policies, providing staff training and establishing procedures for reporting and addressing complaints.
Kate Palmer of business services firm Peninsula said it was important to acknowledge employers’ concerns but that genuine harassment should be dealt with.
“Employers may be relieved to know that whilst there are discussions around a proposed ‘banter ban’, in reality, it is very unlikely they will be expected to completely ban conversations between third parties in their premises,” she said.
“The legal position at play here considers whether an employer will be liable for any harassment towards their staff from third parties and there are mechanisms in place under current laws for an employer to dispute this liability. They do this by showing that they have taken all reasonable steps to prevent the harassment from happening.”
Palmer added that it “doesn’t mean employers shouldn’t take this seriously [as] far too often, the term ‘banter’ is used as an excuse to cover up behaviours that actually fall under the legal definition of harassment.”
Businesses, she said, that did not act could find themselves facing tribunal claims or complaints to Equality and Human Rights Commission from staff. She said when there were harassment complaints, “employers should ensure they investigate them on a case-by-case basis to determine what, if any, action is necessary”.
Balancing Free Speech and Harassment Protections
The Equality and Human Rights Commission (EHRC) has expressed reservations about the bill, cautioning that it could impose “excessive limitations on debate”.
Universities may also face complications due to potential conflicts between harassment protections and free speech obligations. Transport Minister Lilian Greenwood has emphasised the importance of balancing free speech and workers’ rights in response to concerns surrounding the Employment Rights Bill. She argued that suggestions it could lead to pub closures are exaggerated and reiterated the bill’s goal is to provide a safe workplace without unduly infringing on private conversations.
As the bill progresses, employers must navigate the balance between safeguarding their employees and upholding free speech. Implementing clear policies, providing staff training and developing an inclusive workplace culture are crucial steps to mitigate risks and ensure compliance with evolving legal standards.