The British pub was once a place where people could speak frankly about any subject under the sun, from the idiocies of the government of the day to the defects of certain members of the Royal Family to the odd habits of the new vicar.
A pub was the one place, outside the home, where we felt free to speak our minds and, if necessary, occasionally blow our top in the company of friends and acquaintances.
There were limits, of course, which were enforced by a pub landlord, who could tell a particularly garrulous customer that he had drunk enough, and despatch him (usually a ‘him’) into the night.
I write in the past tense because, although these ancient freedoms still exist, they are threatened by Angela Rayner’s Employment Rights Bill, which is wending its way through Parliament. Unless the Government backs down, pubs will no longer be a safe haven.
The Employment Rights Bill is egregious in all sorts of ways. Workers will have the right to take companies to court for unfair dismissal from the first day of their employment as opposed to two years at present. Statutory sick pay will be immediate.
Although our ancient freedoms to speak our minds still exist, they are threatened by Angela Rayner ’s Employment Rights Bill
By the Government’s own reckoning, these and other measures could cost hard-pressed employers £5 billion a year. The power of the trade unions will undoubtedly increase.
But there is another aspect to the Bill – the so-called ‘banter ban’ – that is just as insidious as the financial burdens on businesses. People not only in pubs but in other public arenas such as universities and sports stadiums will find their free speech curtailed.
Why such restrictions should be part of the Employment Rights Bill is a good question. I’ll try to answer it by peering into the illiberal mind of our Deputy Prime Minister, the aforementioned Angela Rayner.
Ange believes – doubtless egged on by her trade union chums – that employers should have a legal duty to protect workers from being harassed at work by third parties such as customers or clients. If they fail to do so, they could be sued at an employment tribunal.
Imagine a lively discussion in a pub about religion or abortion or transgender issues. A bartender with big ears who overheard such a conversation, and was offended by it, could demand that the pub landlord take action. If nothing was done, an employment tribunal would loom.
When those rather annoying transatlantic figures Elon Musk and Vice-President JD Vance (pictured) complain about restrictions to free speech in Britain, they are often misinformed
Far-fetched? I don’t think so. In modern Britain the definition of ‘harassment’ has become very broad. Comments that would have been deemed innocuous a generation ago have been judged by tribunals to constitute harassment.
For example, in 2022 an employment tribunal ruled that calling a man ‘bald’ is sex-related harassment. After a long legal tussle the so-called victim received compensation.
Last year a senior tribunal judge suggested that telling someone with a foreign accent that you can’t understand them could amount to racial harassment. Another tribunal ruled that it is racist to say someone is playing the race card at work.
Two months ago a tribunal judge ruled that imitating an Indian accent, even if it is part of a ‘private joke’, constitutes racial harassment. Last month a black Metropolitan Police officer was awarded more than £25,000 by a tribunal for racial harassment after his boss had described him as ‘menacing’.
In 2019 a worker subjected to jokes about Alzheimer’s disease was judged by a tribunal to be a victim of harassment and direct discrimination, even though the comments were intended as office banter.
We live in a crazy world in which harmless if tasteless jokes and throwaway comments are readily interpreted by the legal authorities as harassment. The term has become ubiquitous.
It is therefore not at all far-fetched to imagine that if Clause 20 of Angela Rayner’s Employment Rights Bill – the ‘banter ban’ – became law, some of us could fall foul of it over our evening pint. More of us would probably simply feel constrained, and be wary of giving vent to forthright opinions in public places.
Unsurprisingly, the Government denies that Clause 20 is an attack on what it calls ‘lawful free speech’, to which concept it claims to be devoted.
Yet it admits that its intention is ‘to strengthen workplace protections to tackle harassment’. And, as we have seen, what one person thinks is banter can be construed by another person of a sensitive disposition (and perhaps litigious inclination as harassment.
Toby Young, an energetic new Conservative Life Peer and the founder of the Free Speech Union, would like to get rid of Clause 20 when the Employment Rights Bill is debated in the House of Lords after Easter.
If he can’t get enough support (which he almost certainly won’t) he will try to tweak the Bill so that opinions on political, moral, religious or social matters are exempt from the law as long as those opinions are not ‘indecent and offensive’.
The Government is of course not eager to accept any Lords amendments. So it will fall to the Tory opposition, Reform and (one would hope) the Lib Dems to take up the cause when the Bill returns to the Commons. I am sure that the public cares.
Note that the Equality and Human Rights Commission – not a body whose deliberations I usually follow very carefully – has warned that proposed rules requiring companies to take ‘all reasonable steps’ to prevent harassment of staff by third parties are too broad-brush and could lead to ‘excessive limitations on debate’.
Being prevented from sounding off in the pub is not the only threat to our freedoms. Lord Young points out that at football matches cries of ‘are you blind?’ are often levelled at the ref. It’s not clear what ‘reasonable steps’ stadium owners could be expected to take to stop such abuse.
Would they be liable if the referee felt harassed? Some of ‘my learned friends’, a proportion of whom are not slow to spot fresh moneymaking opportunities, might wish to become involved.
More seriously, Lord Young believes that Clause 20 would enable universities to more easily no-platform speakers whose very presence might be interpreted as harassment by woke students who can’t bear opposing views.
Why do it? That is my question. Why introduce a measure (by the way, it was mentioned only fleetingly in Labour’s election manifesto) that is likely to restrict free speech in the very places where it should thrive, besides giving work to lawyers and clogging up already overstretched courts?
In an ideal world the whole of Angela Rayner’s Employment Rights Bill would be junked. But that’s not going to happen because the Government has such a huge majority. Sir Keir Starmer and Rachel Reeves daren’t stand up to financially illiterate class warrior Big Ange, at least for the moment.
But Labour could be shamed into withdrawing Clause 20. When those rather annoying transatlantic figures Elon Musk and Vice-President JD Vance complain about restrictions to free speech in Britain, they are often misinformed.
This time, if Labour insists on going ahead, they’ll be right.
