ARTICLE
24 January 2025

Cutting Through The Headlines: Will Pubs Ban People Talking About Transgender Rights?

HC
Herrington Carmichael

Contributor

Herrington Carmichael is a full-service law firm offering legal advice to UK and international businesses. We work with corporate entities of all sizes from large PLCs through to start-up businesses.
While this week's headlines have drawn attention, let's explore the truth behind the claims that pubs will ban people talking about topics such as transgender rights.
United Kingdom Employment and HR

While this week's headlines have drawn attention, let's explore the truth behind the claims that pubs will ban people talking about topics such as transgender rights.

What is the media saying?

Recent discussions around the Equality and Human Rights Commission's (EHRC) recommendations on third-party harassment at work have hit headlines. At the heart of the issue is the EHRC's focus on sexual harassment from third parties and its call for more evidence regarding how the right of employees can be balanced against the rights of customers.

Media outlets such as The Times have speculated that these recommendations could lead to scenarios where "pubs ban customers from discussing contentious topics like religious views or transgender rights" to avoid potential legal issues under Labour's workers' rights reforms. The Times warned that these reforms could disproportionately restrict freedom of expression in relation to overheard conversations from third parties such as customers and members of the public.

Politicians like Nigel Farage have also weighed in, claiming the measures could end "pub banter" altogether. Farage argued that expressing contentious views could result in customers being asked to leave, suggesting that "You might as well close the pubs down".

But how much truth is there to these claims?

How this situation might occur

The headlines stem from scenarios such as the following: An employee is working in a pub and overhears customers discussing their religious beliefs about transgender rights. If the conversation distresses an employee, they might report it to their manager, who could then ask the customers to leave. Critics argue that such measures might lead employers to pre-emptively restrict sensitive topics of conversation, thereby limiting freedom of expression in order to avoid a claim from the employee.

What did the Commission Evidence say?

The Employment Rights Bill is currently at the committee stage in the House of Commons. As part of this process, the EHRC submitted written evidence to the Commons Committee addressing provisions related to protection from harassment, zero-hour contracts, and duties of employers relating to equality.

The Commission supports measures to prohibit third-party sexual harassment but advises the government to conduct further analysis. The aim is to strike a balance between employees' rights to a harassment free workplace and third parties' rights to freedom of expression, particularly when those third parties express protected religious or philosophical beliefs.

The Commission also raised the point that the legal definition of a philosophical belief is complex and not always well understood by employers. Philosophical beliefs include religious beliefs, political philosophies, ethical veganism and views on women and transgender rights. If employers do not fully understand what can amount to a philosophical belief this could result in a disproportionate restriction of the right to freedom of expression.

The EHRC's concerns are rooted in Articles 8 and 10 of the European Convention on Human Rights, which safeguard the rights to private life and freedom of expression. This tension has been acknowledged before, as protections against third-party harassment were removed from the Worker Protection Act 2023 to address similar concerns.

The Law

Harassment, as defined under the Equality Act 2010, occurs when someone engages in unwanted conduct that has the purpose or effect of either violating another person's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. This definition extends to situations where someone overhears or observes offensive behaviour, even if it is not directly aimed at them.

Under the new Employment Rights Bill, employees will need to prove that their employer failed to take all reasonable steps to prevent harassment by third parties. The specific measures an employer is expected to take depend on the circumstances. For instance:

  • In a pub setting: Overheard conversations may need to be particularly severe or offensive. The law is unlikely to require employers to monitor everyday discussions but could expect them to intervene if conduct clearly crosses a line.
  • In settings such as nursing homes: Employees may face harassment from vulnerable residents where an employer's ability to control behaviour is limited. Nonetheless, employers could still be obliged to implement reasonable measures to minimise harm, such as establishing clear protocols.

Employers are unlikely to be expected to monitor every interaction but could be required to take appropriate action when situations arise. This might include addressing complaints proportionately and ensuring that their response aligns with the level of control they have over the environment.

While some media reports suggest that the Bill could lead to an overreach in regulating speech, the focus should remain on fostering a balanced approach of protecting workers from harmful behaviour while respecting the rights of customers and other third parties to express themselves.

Next steps

It will be important for the Government to consider the concerns raised by the Commission and what the relevant considerations will be if a third party has engaged in unwanted conduct. For example:

  1. How loud are the customers being;
  2. What sort of language is being used;
  3. How easy is it to protect the employee from being harassed.

While the media may sensationalise these discussions, the reality is that most employers are unlikely to start policing casual conversations. Good employers already prioritise creating respectful workplaces and protecting their employees from harassment. Where third party conduct becomes problematic, employers should be able to manage the situation without resorting to blanket bans on specific topics.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More