14 January 2025

Be careful at the pub, you don’t know who’s listening

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We always knew there would be fireworks over the Employment Rights Bill. The first problem blew up yesterday, over its plans vastly to extend employers’ liability for workplace harassment. 

The current definition of harassment is pretty vague (‘conduct that has the purpose or effect of violating the recipient’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment’): but at least the employer’s duty to prevent it is correspondingly limited, namely to keeping tabs on what other workers do. After all, the reasoning runs that an employer can always tell the office Romeo or provocateur to pipe down: but expecting them to keep visiting customers or salesmen in line would be going too far. 

Not good enough, say Labour, on fairly direct instructions from the TUC. Workers need protection from harassment by anyone at all – third parties, customers, whoever – whether they are anything to do with the employer or not. The employer must simply be made to police his workplace.

There are enough objections to this on principle to fill a whole article. It adds to the burdens of employment when we should be encouraging it, it puts workers’ abstract amour propre above the employer’s right to carry on his business and add to the economy, and it threatens to turn the trade counter of any builders’ merchant, normally a home for a good deal of crude but light-hearted banter (and a place which would bewilder most Labour MPs), into a cross between a shrine and a morgue. 

But there’s an even more serious difficulty once we come to pubs and restaurants. Will landlords and waiters now have to tell customers to avoid any casual conversation that could offend the dignity of any staff, from the barman to the bottle-washer, the maitre d’ to Maggie the cleaner? And if they do, what about the customers’ freedom of speech? You can’t discriminate against a customer on grounds of their religion or what they think about the trans issue. But what happens, then, when the irresistible force meets the immovable object because the customer’s views freely expressed make the barman fidget?

The Equality and Human Rights Commission (EHRC), headed by the enormously sensible Baroness Falkner (an inspired Liz Truss appointee whose term Lisa Nandy must be kicking herself for having extended last month to December 2025), makes exactly this point. It quite rightly says that we need more thought here; reading between the lines, it gets close to asking whether, in the case of the entertainment industry, the game is worth the candle, or whether we shouldn’t say that employers are not liable for what their customers say.

The trouble is, of course, that the EHRC’s point is a no-brainer. Quite apart from the principled point on free speech, the idea that the free-and-easy traditions of pubs and cafes need to be sacrificed on the ideological altar of workers’ dignity is bonkers. If you don’t like the view expressed by the regulars at a particular pub, don’t work there: no doubt there are wine bars in Barnes or Blackheath where only the most refined opinions are heard and you’d be quite happy. There is also an uncomfortable truth, that employers terrified of being sued by their own employees will adopt a safety-first attitude of ‘if in doubt, tell the customer to shut up’. Terrible for business, of course: but who’s to argue with workers’ rights?

Unfortunately for most Labour members, who one suspects deep down regard pubs as tiresome places they sometimes have to visit for ‘man of the people’ photo opportunities, and restaurants as places where you discreetly cut deals, it’s not a matter of disagreement. They simply can’t understand what the problem is. Brought up under posters of Rosie the Riveter, and educated by academics in safe employment who have the luxury of seeing workers’ rights in terms of abstract values like safety and dignity, this is just a problem that will have to be sorted out. In the honeyed words of Mr A Spokesman from the Office for Equality and Opportunity, presumably approved by a junior minister, ‘courts and tribunals will continue to be required to balance rights on the facts of a particular case, including the rights of freedom of expression’. Not our problem, guv.

Will the Government win this one? The good news is that the odds may be stacked against it. The EHRC aside, many Labour MPs are already fed up with orders to defend the indefensible, from Net Zero fanaticism to not uncovering the truth about the grooming gangs. They may well simply not have the stomach to annoy ordinary voters up and down the Kingdom by insisting on their right to tell them what they’re allowed to say down the boozer. Here’s hoping, at least. Cheers.

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Andrew Tettenborn is a professor of law at Swansea Law School.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.