Honestly my heart sank when I saw this morning’s front page of the Times:

I don’t think that pubs are going to do this – but let’s look at what the Times is saying:

Pubs could ban customers from speaking about contentious beliefs such as religious views or transgender rights over fears of falling foul of Labour’s workers rights reforms.

The government has been warned by the equalities watchdog that rules could “disproportionately curtail” freedom of expression and be applied to “overheard conversations”. 

The Times is reporting on the written evidence submitted to the Commons Committee currently considering the Employment Rights Bill – which extends an employer’s liability for harassment to unwanted conduct from ‘third parties’ such as clients, customers and members of the public. 

Reading the Times article, I would say that they are overstating the Commission’s concerns, but not by that much. You can read the Commissions full evidence here, but the section on third party harassment concludes:

While we support the prohibition of third-party sexual harassment, we believe the UK government should undertake further analysis to understand how to balance third parties’ rights to freedom of expression under Article 10 and employees’ protection from harassment and right to private and family life provided under Article 8 of the European Convention on Human Rights. This should also take into account any additional complexity that may arise if the third party is expressing a philosophical or religious belief that is protected under the Equality Act 2010. (para 6.10)

On balance I am more irritated by the Equality Commission than by the Times. Here is a meaningful extension of the right not to be subjected to harassment in the workplace and it appears that the Equality Commission is against it because it raises human rights concerns. Really?

Here is where they are coming from. Imagine a scenario in a pub where a member of the bar staff overhears a conversation between two customers discussing their religious beliefs about trans rights. The member of staff happens to be trans (or a committed gender critical feminist, the argument is the same either way), is upset by what they hear and complains to a manager. The manager responds by asking the customers to leave – with the result that their freedom of expression is being curtailed.  Rather than face such a risk, employers may feel they have to prevent any conversations on sensitive topics relating to religion or philosophical belief.

The Equality Commission is therefore calling for further analysis from the Government to understand how the rights of the employee to be protected from harassment can be balanced with the rights of the customers. 

I really don’t think that is going to help. The law already provides for that balance in a number of ways.

First of all there is a reasonableness threshold to the whole question of harassment. It is certainly true (and this is not new) that conduct that is simply observed or overheard by the claimant can amount to harassment even if it is not directed at them. But the nature of the conduct – and the fact that it consisted of a private conversation – is certainly a relevant consideration in deciding whether someone has engaged in ‘unwanted conduct’ having the purpose or effect of violating someone’s dignity or creating an offensive or hostile environment. How loud are the customers being? How are they expressing themselves? What sort of language and vocabulary are they using? These factors will also come into play in deciding whether the conduct in question can reasonably be regarded as having the effect required to make it harassment (see S.26(4(c) Equality Act). This is an objective standard of reasonableness applied by Tribunals. It is sometimes said that in harassment what matters is the perception of the victim – and that is true to an extent. But it is not the only consideration. The conduct must also meet a certain level of seriousness. Overall, in the context of overheard conversations between people who are not fellow employees, the threshold for establishing harassment is likely to be quite high.

The other consideration is that an employer will only be liable for third party harassment if it has failed to take all reasonable steps to prevent the harassment from taking place. 

In fact (and here’s a nerdy point) under the provisions inserted by the Employment Rights Bill, the claimant in a third-party harassment case will have to demonstrate that the employer has failed to take all reasonable steps – the burden of proof will be upon them rather than the employer. This is different from other harassment cases where the employer has to establish a defence by demonstrating that it has taken all reasonable steps to prevent the harassment (see S.109(4) Equality Act). 

What steps will be reasonable will of course vary with the situation. One important question may be the extent to which the employer is able to control the environment in which the conduct takes place. For example, it is much easier to see how an employer can protect an employee from being harassed by a customer using a contact centre than from a member of the public passing an employee who is cleaning the street. Sometimes there will not be much that an employer can do other than to support the employee and assist in reporting serious cases to the appropriate authorities. Even environments that the employer controls can present challenges. Think of a care home where a vulnerable resident subjects one of the workers to racial abuse. The employer may not be in a position to insist on the resident leaving. Nor can a local authority necessarily refuse support to a vulnerable person or child because of the way they speak to members of staff. 

One factor that will certainly be relevant in deciding what reasonable steps can be taken is the right to freedom of expression. This is already something that employers have to grapple with in the workplace and while an employer’s liability for third-party harassment does raise fresh issues, I’m not sure it makes things harder. An employer has a reasonable amount of control over how its employees behave in the workplace and has more scope for limiting their freedom of expression than it has in relation to customers in a bar or restaurant. There is therefore less that an employer can reasonably be expected to do in that environment to protect employees from overhearing things that may upset them. 

I really can’t envisage employers actively policing the subjects that their customers choose to discuss. I would gently suggest that any bar or restaurant that actively seeks to ban certain topics of conversation is getting a bit carried away, Nevertheless there will be circumstances in which a reasonable employer might be expected to ask customers to leave if what they are doing amounts to the harassment of staff. Any good employer will be doing that anyway! That may be seen as limiting a customer’s freedom of expression – but I’m not sure how much of a human rights abuse it really amounts to. As with most of employment law – it all just depends. It’s a matter of common sense.

It strikes me as odd that the Equality Commission should be advising the Government to conduct more analysis about how these issues will play out. Surely that is their job? Aren’t they best placed to explain to employers how to make sure that the potentially conflicting rights are balanced appropriately? Shouldn’t they be coming up with practical steps that employers can take to protect employees without violating the Human Rights of customers? If they produced a Code of Practice on the issue – a short and practical guide to the steps that employers should be taking, rather than the 300 page behemoth already in place – then Tribunals would be obliged to take that into account in reaching their decisions. If the Commission feels that they can’t do that then they should say so. But in that case, what are they actually for?