Third-party harassment liability
Will the Employment Rights Bill lead to particular topics of conversation being banned in pubs, and even the end of free speech? Some commentators have suggested as much. For instance, Geraldine Scott, senior political correspondent at The Times, has said: “Pubs could ban customers from speaking about contentious beliefs such as religious views or transgender rights over fears of falling foul of Labour’s workers’ rights reforms. The Government has been warned by the equalities watchdog that rules could ‘disproportionately curtail’ freedom of expression and be applied to ‘overheard conversations’.”
The reality of the proposal and its likely consequences is slightly more nuanced:
- The Employment Rights Bill includes provisions to make all employers – not just those in the hospitality sector – liable for third-party harassment of an employee if it occurs during employment and the employer fails to take all reasonable steps to prevent it. This will not be limited to sexual harassment, but will extend to harassment on the grounds of age, disability, gender reassignment, race, religion or belief, and sexual orientation.
- The Employment Rights Bill will give the Government the power to introduce new regulations outlining what amounts to “reasonable steps” to prevent harassment, including third-party harassment. These steps may include conducting risk assessments, publishing anti-harassment policies, and taking steps related to the reporting of harassment and handling of complaints. While it is possible that these steps could include employers barring from the premises customers who harass staff, they are highly unlikely to include steps such as banning customers from bringing up certain sensitive subjects and frog-marching customers who do raise these subjects off the premises.
- However, in its written evidence to Parliament on the proposals, the Equality and Human Rights Commission acknowledges that there is room for a nuanced analysis to ensure that there is a balance between:
- the duty on employers to protect their staff from third-party harassment; and
- third parties’ right to freedom of expression under art.10 of the European Convention on Human Rights, particularly when the belief being expressed could constitute a “philosophical belief” protected by the Equality Act 2010.
Tribunal awards
The raw numbers of employment tribunal awards can lead employers to think that they have little to fear from the risk of a tribunal claim. After all, the median unfair dismissal award for 2023/2024 was £6,746. Awards for discrimination tend to be higher, but even then compensation is relatively modest – the 2023/2024 median award for disability discrimination was £17,218; and for race discrimination, the median award was £10,253. But very large awards do happen from time to time. May 2025 saw the publication of the remedy judgments in two successful cases that involved sustained and serious discrimination and in which the compensation awarded was unusually high.
In CD v Vigilant Security (Scotland) Ltd (t/a Croma Vigilant) ET/2202088/2022 & ET/4104206/2022, the employment tribunal held that a security guard was constructively dismissed and victimised after he made allegations about a number of incidents that he believed to be racially motivated and that ultimately led him to resign. According to the tribunal, these included “subjecting him without warning to a groundless suspension and purporting to initiate a groundless disciplinary investigation” related to ill-defined charges of very serious wrongdoing. He was awarded total compensation of £360,705.
In Wood-Hope v Salford City Council and The Governors of the Friars Primary School ET/2408035/2021, the employment tribunal held that a trade union representative was unfairly dismissed, subjected to a trade union detriment, and suffered disability discrimination after it found that the headteacher orchestrated a campaign to get rid of her. This was after she challenged the headteacher’s decision to change the classroom observation protocol, including deciding that he would be conducting unannounced drop-ins to classes, contrary to the existing agreement on classroom observations, which had been collectively negotiated. She was awarded total compensation of £370,564.
Did you know?
- When interest and rounding up for tax are applied to the different elements of compensation, awards for discrimination can be substantial, even for individuals who are not the highest earners.
- There is no statutory limit on the amount of compensation that a tribunal can award for discrimination.
- Awards can include compensation for financial losses, such as future lost earnings and pension contributions, and non-financial losses such as injury to feelings.
- Where an employer has acted in a malicious, insulting or oppressive manner, the tribunal can award additional aggravated damages.
- The tribunal can also apply an uplift of up to 25% if the employer has failed to follow the Acas code of practice on disciplinary and grievance procedures, where applicable.
