Are you ready for the “banter ban”? Labour is planning to ban banter in pubs, restaurants, bars, entertainment venues and football grounds. Clause 20 of the Employment Rights Bill, currently going through the House of Lords, amends the Equality Act to impose a legal duty on employers to “take all reasonable steps” to prevent their employees being “harassed” by third parties – meaning they could be sued by their workers if they don’t do enough.
That may sound reasonable, but the Worker Protection Act 2023 already extends employers’ liability under the Equality Act for third-party sexual harassment – and of course, any form of physical assault is already a crime. So the “harassment” we’re talking about here is verbal. Among other things, it will include conversations between customers or members of the public that are overheard by employees – not directed at them – and which they find offensive in virtue of one or more “protected” characteristics. Not just their own, mind you.
Under Labour’s new law, employees will be able to take offence on behalf of one of their colleagues. Given that we live in an age in which some are hyper-sensitive, the implications for the hospitality sector of turbo-charging the Equality Act in this way are mind-boggling. What “reasonable steps” will a publican be expected to take to protect his or her staff from overhearing conversations between customers that might upset them?
Will it be sufficient to include a notice on the wall warning customers to keep their opinions to themselves, on issues such as gender neutral toilets, mass immigration and the Israel-Gaza conflict? Or will publicans need to go further and employ “banter bouncers” to eavesdrop on customers and eject anyone for saying something “inappropriate” or “problematic”, such as telling a saucy joke? It seems extraordinary that this Government, which claims to be pro-growth, is about to impose additional compliance costs on a sector that is already on its knees. According to the Campaign for Real Ale, 37 pubs close every week in Britain.
There’s little doubt that this new law will accelerate that rate of closure – and those that remain will be sanitised “safe spaces” in which no one dares express a controversial opinion or tell a joke. That’s one reason why Hospitality UK and the British Beer and Pub Association have come out against the “banter ban”. But it isn’t just pubs.
In football grounds, it’s not unusual for fans to shout “Are you blind?” at the linesman for failing to rule a goal offside or spot a handball. Once this new law is on the books, a partially sighted steward who overhears this could sue the club for not taking “all reasonable steps” to protect him from being “harassed”, ie overhearing that expostulation. Indeed, any of his colleagues could sue the club on his behalf. That, in turn, means football clubs will have to clamp down on any expostulations or chants that might cause offence.
If Sir Keir Starmer has his way, it won’t just be his beloved Arsenal that’s a library! Expecting employers to police the speech of customers in this way will have a hugely chilling effect on free speech. The fearful atmosphere that prevails in so many workplaces since the passing of the Equality Act, with people looking over their shoulders before whispering what they really think about a controversial issue, will be extended to the venues people go to in their leisure time.
The era when every pub was a parliament, to use Nigel Farage’s memorable phrase, will be over. In the Commons, the Conservatives tabled an amendment to the Employment Rights Bill disapplying clause 20 in its entirety, and another excluding pubs, sports and hospitality venues from its impact. But not a single Labour or Lib Dem MP voted for either.
Amending the Bill in the House of Lords – which I’m currently trying to do – is our last chance to stop this attempt to ramp up the policing of speech outside the workplace. One final point: when the Equality Act was originally passed, it included a clause making employers liable for the harassment of employees by third parties, but it was repealed in 2013 because it proved to be so costly and difficult for employers to comply with. We mustn’t make the same mistake again.
● Lord Young of Acton is the general secretary of the Free Speech Union.