Are you ready for the ‘banter ban’? Labour is planning to ban banter in pubs, restaurants, bars, entertainment venues and football stadiums.
Luckily, there is something you can do to stop this. Clause 20 of the Employment Rights Bill, currently going through the House of Lords, will 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 employees in the Employment Tribunal if they don’t do enough.
That may sound reasonable, but the Worker Protection Act 2024 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’ characteristic.
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 like trans rights, mass immigration and the Israel-Palestine 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?
Labour's stealth crackdown on free speech is one step closer to becoming law. It's now or never - Toby Young
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It seems extraordinary that this government, which claims to be ‘pro-growth’, is about to impose additional compliance costs on a sector that’s 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.
\But it isn’t just pubs. In football stadiums, 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’, i.e., overhearing that expostulation. That, in turn, means that clubs will have to clamp down on any expostulations or chants that might cause offence.
After that, it won’t just be Sir Keir Starmer’s beloved Arsenal stadium that’s a library! The same goes for bars, restaurants and hotels. Expecting employers to police the speech of their 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 people could relax in the speakeasy atmosphere of their local will come to an end.
In the House of Commons, the Opposition 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 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.
I have tabled some amendments to Clause 20 in the House of Lords, one to scrap it altogether, another to disapply it from hospitality, sports and higher education, and another to make it less draconian.
I’m hoping that at least some of those amendments will command enough support to get through. But you can help by sending an email to a peer, urging him or her to vote for these amendments.
Please click here to send an email to a member of the House of Lords. It only takes a couple of minutes and could make a real difference.
