Warning over employment Bill’s impact on overheard conversations in pubs
The EHRC said the difficulty could be worse if someone is expressing an opinion which amounts to a philosophical belief.
The equalities regulator has warned of the “complexity” employers might face in deciding whether an overheard conversation in a workplace could amount to harassment.
The Government’s Employment Rights Bill includes provisions to require employers to take all reasonable steps to prevent harassment at work by third parties.
The law would cover any workplace, so could include pubs, offices and healthcare settings where a third party is present, such as a customer, client or patient.
The Equality and Human Rights Commission (EHRC) warned of the complexity of the issue, which it said could be made more difficult if someone is expressing an opinion which amounts to a philosophical belief.
Philosophical beliefs could include views on religion or gender identity.
In written evidence to MPs last month, and first reported by The Times, the EHRC said there could be “disproportionate restriction of the right to freedom of expression” and that more analysis is needed on the potential impacts of the Bill before it is passed into law.
The regulator said current analysis has not addressed “the complexity that would be faced by employers in determining whether conduct has a harassing effect, particularly in the case of overheard conversations”.
It said the legal definition of what amounts to philosophical belief “is complex and not well understood by employers”, adding that it is “arguable that these difficulties may lead to disproportionate restriction of the right to freedom of expression”.
The EHRC called on the Government to “undertake further analysis”, particularly to take into account “any additional complexity that may arise if the third party is expressing a philosophical or religious belief that is protected under the Equality Act 2010”.
UKHospitality, the trade body for hospitality in the UK, said the “burden” of trying to police potentially complex issues should not fall on employers.
Its chief executive Kate Nicholls said: “The EHRC has rightly pointed out that these are complex legal issues, which employers are not equipped to navigate and could impose disproportionate restrictions.
“We agree with the EHRC’s concerns and we don’t believe that the burden of policing these issues should fall upon employers.
“We would urge the Government to take these concerns seriously and think again.
“It should follow the EHRC’s recommendation to undertake further analysis, to ensure that they’re not imposing unenforceable and complex obligations upon employers.”
John Kirkpatrick, EHRC chief executive, said: “The Government’s ambition is to address the issues faced by workers who are at a disadvantage in the labour market – including preventing sexual harassment and closing pay gaps.
“But for this legislation to have the desired effect, it needs to be enforceable. For it to be enforceable, we need clarity on the role of regulators – including the EHRC – and sufficient resource to ensure compliance.”
An Office for Equality and Opportunity spokesperson said: “Free speech is a cornerstone of British values, but of course it is right that the Employment Rights Bill protects employees from workplace harassment, which is a serious issue.
“As with all cases of harassment under the Equality Act 2010, 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.”
