As the Employment Rights Bill slowly makes its way through the legislative process, one aspect in particular continues to attract severe criticism. Clause 20 of the ERB would compel employers to “take all reasonable steps” from third-party harassment, but many worry that this could lead to heavy administrative burdens and excessive limitations on free speech.
Originally introduced late last year, the Employment Rights Bill is intended as the flagship piece of legislation in Labour’s “New Deal for Working People” agenda. It encompasses 28 areas of reform, including ending zero-hour contracts, expanding family leave, and strengthening redundancy protections.
Clause 20 of the bill seeks to strengthen protection of employees against harassment, by expanding employer liability to include third parties. In this context, “third parties” refers to all non-employees involved with the business, such as customers, clients, or visitors. This means that unless an employer has taken “all reasonable steps” to protect their employees form this sort of harassment, they can be held legally liable for it.
While no doubt well-intentioned, this policy has potentially vast unintended consequences. The concern, raised from multiple sides, is that “all reasonable steps” is vague and could lead risk-averse employers to implement extreme restrictions on conversations and debates about controversial topics in the workplace.
Indeed, the Equality and Human Rights Commission recently cautioned that Clause 20 could impose “excessive limitations on debate” because workers could legally become victims of harassment merely by overhearing a conversation that they find personally offensive. It is worth pointing out that “harassment” does not only refer to language or behaviour of a sexual nature but also encompasses other protected characteristics.
The Free Speech Union has warned that this could extend to “offhand remarks, jokes and contentious political views”. If the past decade is any guide, it is certainly not outside the realm of possibility that some overly sensitive employee could overhear a conversation about, say, transgender issues or immigration, and decide to sue his or her employer for third-party harassment. This has led some critics to suggest that establishments like pubs and cafes might have to employ “banter bouncers” to ensure against such legal exposure.
This may sound hyperbolic, but the issue is not whether a court would eventually rule that employing banter bouncers or announcing bans on discussions of certain topics at the local pub are indeed “reasonable steps”. Rather, the point is that employers across the country will not know what steps are “reasonable”, and will therefore be likely to take an overly cautious approach to avoid the expenses of a potential lawsuit.
As Baroness Noakes recently put it during a debate in the House of Lords, Clause 20 “will plunge employers into a legal quagmire [and] force them to spend a fortune on obtaining and then implementing legal advice”. She went on to say that if the clause is implemented in its current form, “the only growth it will achieve is in the debt restructuring business, in law firms specialising in equality law and, above all, in the dole queue”.
In short, the Clause will incentivise employers to take an excessively restrictive approach to speech that some employees may consider offensive. As such, it is not hard to see how this part of the ERB might have a negative impact on universities. Regular readers will be all too familiar with the examples of academics or students taking offence at speech with which they disagree. Now, this often leads to protests or calls for cancellations, but if Clause 20 is implemented, it could easily lead to lawsuits as well.
In the UK, academic freedom and free speech are protected “within the law”, meaning that free-speech rights can be legitimately restricted by other legal rights. If implemented without significant amendments, this clause risks significantly narrowing the realm of legally acceptable speech, tipping the balance further in the wrong direction.
Universities, like almost all other entities, are risk averse, particularly when it comes to legal liability. Moreover, our educational institutions have proven time and again that they can barely stand up to the pressure of a protest. Imagine how quickly they will surrender under the threat of legal action. The one thing university administrators might fear more than petulant snowflakes is highly litigious ones.
The good news for universities is that the extension of rights in Clause 20 only applies to staff, not to students. Still, this by no means solves the issue. Employees could still potentially sue their institutions for offensive views expressed by students or external speakers. It is hard to imagine how a constructive seminar discussion on a controversial topic could be navigated in such an environment.
Moreover, CAF has often reported on how academic staff at the nation’s universities manage to create an atmosphere of intellectual conformity on their own, without the help of overly sensitive students. Clause 20 only adds to this problem, and could even end up retracting some of the new protections contained in the Higher Education (Freedom of Speech) Act, as this piece of legislation, when it is finally allowed to commence in full, will only protect speech within the law.
Ironically, part of Labour’s opposition to the original version of HEFOSA was that it would “create costly litigation that risk diverting resources away from students at a time when university finances are already strained”. This was a reference to the tort, which allowed academics whose free speech rights had been violated to seek legal redress against universities, although only after every other option had been exhausted. Clause 20 introduces much broader liability and allows costly litigation as a first step. In comparison, the potential cost of the HEFOSA tort is a drop in the bucket.
We urge the Government to take the criticism of Clause 20 extremely seriously and open a debate for potential amendments. Strengthening protections against harassment for employees is a legitimate goal, but it must be done in a way that does not limit the free speech of everyone else.