In a telling sign of how far the trade union movement has strayed from its historic defence of free expression, TUC General Secretary Paul Nowak has backed the government’s proposed crackdown on “third-party harassment” in customer-facing venues such as pubs, cafés and shops. Critics of the measure, he says, are merely defending “their right to be offensive”.
The remark refers to Clause 20 of the Employment Rights Bill, which would make employers legally liable for the “harassment” of their employees through bantering remarks, jokes and contentious political views from customers and clients — including those that the employees happen to overhear. Under the proposal, an employer “permits” such harassment if it occurs during the course of someone’s work and “all reasonable steps” have not been taken to prevent it.
Third-party harassment was originally included in Section 26 of the Equality Act 2010, but that aspect of the legislation was repealed in 2013. Now it’s being revived, with harassment still defined as “unwanted conduct related to a relevant protected characteristic, and which violates a person’s dignity or has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment”. The government insists this sets a high threshold. Critics argue that the vague and subjective language risks overreach, especially in speech-related cases.
And Clause 20 doesn’t just apply to shops and hospitality. The implications for academia are especially alarming. Under the Equality Act as it stands, visiting speakers are treated as third parties, and universities are under no legal duty to protect its staff from being “harassed” by them. This legal “gap” has proved crucial, allowing groups like the Free Speech Union to mount successful challenges when institutions over-apply the Act and attempt to no-platform speakers, whether invited guests or other staff members, whose views may be controversial but are entirely lawful.
Clause 20 would close that gap. If enacted, universities could claim that disinviting a speaker is not censorship but legal compliance. An invitation to a gender-critical feminist, say, or a conservative religious academic, could be withdrawn the moment a member of staff alleges “harassment”.
The clause would also give university management legal cover to sanction — or silence — the “offensive” views of their own employees, many of whom belong to the University and College Union (UCU), a TUC affiliate. That the TUC’s General Secretary supports a measure that would enable higher-education establishments to penalise unionised academics for expressing lawful views is remarkable. In effect, Nowak is endorsing a legal mechanism that empowers employers to infringe the freedom of his members, while they continue to pay their dues to a union supposedly there to defend them.
The problem, though, runs even deeper than that. At the heart of Nowak’s defence of Clause 20 lies the presumption that the right to be offensive isn’t worth protecting. But what does it mean to be “offensive”? And offensive to whom? By what standard, and in whose eyes? Is it a matter of intention or of perception? Why, in fact, should such an ambiguous, subjective category be used to curtail speech at all?
Nowak also overlooks (or doesn’t care about) the legal protections afforded to speech that might fall under the label “offensive”: the “disagreeable”, the “unpopular”, the “abrasive”, or simply “politics he finds unpalatable”. These are precisely the forms of expression most vulnerable to suppression when a society loses its civic confidence, recoils from the intellectual discomfort of contestation that’s intrinsic to progress and seeks refuge instead in a sterile safetyism where the prevailing orthodoxy loops endlessly, changeless and inert.
The European Court of Human Rights has repeatedly affirmed that Article 10 protects not just polite or anodyne speech. In the seminal case Handyside v UK (1976), the Court held that freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or indifferent, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’.”
English law is based on the same idea. Outside specific contexts such as bespoke court orders, saying something is not a crime simply because it’s offensive. There must always be an additional element: incitement to hatred, targeted harassment, likely public disorder or intent to cause distress. Under the Public Order Act 1986, for instance, speech must be “threatening or abusive” or accompanied by “disorderly behaviour”, as well as being “likely to cause harassment, alarm or distress”. The deliberately high threshold exists to protect the rough and tumble of democratic discourse.
This principle was reaffirmed in Redmond-Bate v DPP (1999), where the High Court overturned the conviction of a public Christian preacher whose views had offended some listeners but who had not been threatening or abusive. As Lord Justice Sedley memorably put it: “Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”
Less quoted, but no less important, is what he went on to say: “From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas. A central purpose of the European Convention on Human Rights has been to set close limits to any such assumed power. We in this country continue to owe a debt to the jury which in 1670 refused to convict the Quakers William Penn and William Mead for preaching ideas which offended against state orthodoxy.”
Comparable safeguards apply under communications law. Section 127 of the Communications Act 2003 criminalises only messages that are “grossly offensive”. While the term is not defined in statute, both the courts and the Crown Prosecution Service (CPS) have made clear that this, too, sets a high threshold, and doesn’t extend to the merely provocative or controversial.
It is, of course, easy to be sanguine about censorship when it isn’t your own progressive opinions that are likely to cause offence
The principle was reiterated — to the CPS’s own discomfiture — in DPP v Bussetti (2021), a case concerning a video that depicted a cardboard model of Grenfell Tower being burned. Although the video was widely condemned as tasteless and offensive, magistrates acquitted the defendant, finding the footage did not meet the statutory threshold. When the CPS appealed, the Divisional Court upheld the acquittal, confirming that the message must be “not simply offensive but grossly offensive. The fact that the message is in bad taste, even shockingly bad taste, was not enough.”
In other words, English law recognises that, in an open and democratic society, people will be offended, and that free speech loses all meaning if it applies only to inoffensive views.
Nowak says he “loves going to the pub as much as anyone” and doesn’t “think that the thought police are going to descend”. But it is, of course, easy to be sanguine about censorship when it isn’t your own progressive opinions that are likely to cause offence. As Ira Glasser, former head of the American Civil Liberties Union, once observed, “Speech restrictions are like poison gas: they seem like a good weapon when you have the gas and a detested enemy in your sights. But it all depends on who has the gas, and how the political winds blow.”
All in all, Nowak’s breezy dismissal of the right to be offensive goes far beyond jokes in pubs or discussions in bars — it risks undermining the very liberty that, among other things, has long allowed trade unions to say the sort of things that companies and governments don’t want to hear.
