If there’s one part of the Employment Rights Bill that is currently going through the legislative process that has drawn more comment than most it surely must be around clause 20 and the proposal to introduce the duty to take all reasonable steps to prevent third party harassment of employees.
Lord Young of Acton, the founder of the Free Speech Union, has been very vociferous on this issue which he says could impinge upon freedom of speech and other human rights, and which he says could cause great difficulty in practice. How can employers in pubs, restaurants and cafes, for example, protect their employees from overhearing conversations on contentious issues that they might find offensive? It’s as good as impossible and in any event, it risks freedom of speech which surely must trump the right not to be offended. Harassment is defined in the Equality Act 2026 at section 26 as conduct which violates dignity, causes humiliation and an offensive environment, but we cannot put employees in a bubble everywhere. The Bill as it stands risks going too far.
Lord Young hopes that the Bill can be tweaked so that opinions on moral, political, religious or social matters are exempt from the law as long as those opinions are not indecent or grossly offensive. This seems sensible.
On 8 April 2025, the Chair of the Joint Committee on Human Rights wrote to the Secretary of State for Business and Trade raising questions about whether clause 20 strikes the correct balance between rights under Article 8 (private and family life) and Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR).
The questions raised by the Joint Committee were as follows:
- Why the duty to take all reasonable steps does not contain any carve-outs for “overheard opinions”.
- Why employer liability for third-party harassment is being reintroduced without the requirement that the employer must know that the employee has been harassed on at least two other occasions, as previously contained in section 40(3) of the Equality Act 2010 (EqA 2010).
- Why clause 21 of the Bill, which allows the government to make regulations defining what steps are reasonable for an employer to take to prevent sexual harassment under sections 40 and 40A of the EqA 2010, does not also permit regulations defining what constitutes all reasonable steps in clause 20.
- How the new duty to take all reasonable steps will interact with the duty to take all reasonable steps to prevent sexual harassment of employees in the course of their employment under section 40A of the EqA 2010, and how the EHRC will be involved in enforcement.
We will keep you updated on progress as the Bill completes its passage through Parliament. Watch this space.
