A cross-party group of free speech-defending peers will take to the floor of the House of Lords tonight to fight back against Clause 20 — a draconian proposal that would make employers liable for “offensive” speech overheard by their staff.
Among those leading the charge are Lord Young of Acton, General Secretary of the Free Speech Union (FSU), Baroness Fox of Buckley, Baroness Deech, Lord Strathcarron, Lord Macdonald of River Glaven and Baroness Meyer.
If passed, Clause 20 would make employers liable if an employee so much as overhears a joke, comment or political opinion from a member of the public and decides to take offence. That includes remarks not directed at them, or even at anyone in particular. A single overheard comment in the “course of employment” could trigger legal risk unless the employer can prove they took “all reasonable steps” to prevent it.
But what does that actually mean in practice? The law provides little clarity, and the threshold is vague. Employers will be left guessing what counts as “reasonable” in the eyes of a tribunal, and many will play it safe by pre-emptively censoring anything that could be construed as offensive. Expect sweeping restrictions on what customers, clients and visitors are allowed to say.
Even the Equality and Human Rights Commission (EHRC), the statutory body responsible for enforcing the Equality Act, has warned that Clause 20 — and this wording in particular — goes too far. In a briefing to peers, it cautioned that forcing employers to take “all reasonable steps” to prevent third-party harassment could lead to “excessive limitations on debate”. Parliament, it added, must ensure that free speech “is not subject to disproportionate interference”.
In statutory terms, Clause 20 amends the Equality Act 2010 by reinstating employers’ liability for the harassment of their employees by third parties. This provision was originally included in the 2010 Act but removed by amendment in 2013. The new duty is significantly more onerous than its predecessor, and likely to cause widespread confusion, legal overreach and a profound chilling effect on free speech.
That’s why, in tonight’s debate, the group of peers opposing Clause 20 will step in where the government won’t, putting forward a suite of targeted amendments designed to blunt the Bill’s most authoritarian edges.
One amendment clarifies that employers should not be held liable for political, moral, religious or social views expressed in public unless those views are grossly offensive. That phrase doesn’t mean “a bit rude”, “not very inclusive”, or even “very Brexity”. It reflects a much higher legal threshold, drawn from criminal law, where courts have consistently interpreted the phrase to mean material that shocks or outrages the standards of a reasonable person — not merely speech someone finds upsetting or provocative. In short, the lawful expression of belief, even if overheard by an employee, should not be treated as harassment.
Another amendment carves out exemptions from the clause’s scope for pubs, sports venues and universities. Why? Because these are places where informal speech and robust debate are part of the cultural fabric, and should never be chilled by the threat of litigation.
A third amendment seeks to reintroduce the basic safeguard Parliament once understood: that one-off incidents shouldn’t trigger legal action. Before 2013, employers were only liable after two previous incidents. Clause 20 tears that up. This amendment restores it.
Finally, there’s a proposal to strike out “indirect harassment” altogether — a concept so vague it could apply to almost anything overheard. Under this fix, employers would only be liable when speech is actually directed at the employee, not for casual remarks in the air.
The implications of letting Clause 20 through unamended are as farcical as they are far-reaching.
Employers may feel obliged to roll out intrusive codes of conduct for customers, impose speech restrictions on performers, or even automate public-facing roles. Pubs might install “banter bouncers” to eavesdrop on conversations, while emergency services could soon be conducting risk assessments before sending help, in case a distressed caller says something offensive.
Worse still, the proposed duty puts different strands of equality law on a collision course. It risks making employers liable for offending one group — say, easily offended members of the trans community — while trying to respect the lawful beliefs of another, such as gender-critical feminists. The result? Employers left paralysed, trying to navigate a rights hierarchy where someone, somewhere, is always ready to take offence. As the EHCR put it: “The interaction of the third party’s protection from discrimination and the employee’s protection from harassment is complex and is likely to be challenging for employers to navigate.”
For challenging, read expensive.
Clause 20’s impact on higher education could be especially severe. Under the Equality Act as it stands, students and visiting speakers are classed as third parties. That means their speech, however “provocative”, doesn’t trigger any legal duties under the Act. In other words, universities aren’t responsible for shielding staff from things they overhear at a seminar or a debate, and that’s true whether the institution is acting as an employer under Part 5 or as a higher education provider under Part 6.
While universities often over-apply the Act in practice, the law can still be correctly interpreted and enforced.
In 2023, for example, the FSU brought a legal challenge against the University of Essex over policies that, like many across the sector, purported to ban certain forms of student speech on the grounds that it created a “hostile environment” for staff with protected characteristics. The target? Gender-critical views (obvs). But following our intervention, the University conceded, without a fight, that the Equality Act gave it no such power. The speech it wanted to censor was not unlawful — and crucially, because universities are not currently liable for harassment by students, there was no legal obligation to act.
Clause 20 would change that overnight. If passed, universities will be able to claim they have a legal obligation to ensure students and visiting speakers comply with rigid speech codes, on the basis that failure to do so might expose them to liability for third-party harassment.
In effect, it gives legal backing to the worst instincts of HR orthodoxy: pre-emptively banning speech, punishing dissenting views, and encouraging institutions to adopt sweeping, legally defensive speech codes.
Free speech in everyday life is at stake
Later tonight, the Lords will have heard the arguments in the second chamber, but the window to act is still open. If Clause 20 passes unamended, organisations across the country will come under pressure to police speech, not to reflect their values, but to protect themselves from legal exposure.
That’s why the FSU has launched its Write to a Peer tool — a last-ditch effort to stop this draconian clause, which threatens to bring a Starmer-esque joylessness to areas where we were once able to speak, joke and disagree.
Click here to use the campaign tool and make your voice heard. It only takes a few minutes, and it’s time well spent. Free speech in everyday life is at stake. This may be our last real opportunity to stop Clause 20 before it becomes law.
