The Lead Untangles: The so-called “banter ban"

Are the government’s new harassment provisions protecting workers or policing everyday speech?

Photo by Campaign Creators on Unsplash

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At a glance facts

The government has proposed updates to the Equality Act 2010 through the Employment Rights Bill, which include reinstating protections against third-party harassment in the workplace. This means employers would once again have a legal duty to prevent harassment of their staff by customers, clients, and other third parties.

Under the proposed changes, employers could be held liable if they fail to take reasonable steps to stop repeated harassment, which includes racist, sexist, homophobic or otherwise discriminatory comments, even if the harassment comes from people outside the organisation.

Campaigners say this is long overdue: over half of women say they’ve experienced sexual harassment at work, and the current system places the entire burden on the victim to report and prove what happened.

But some Conservative politicians and right-leaning commentators have branded this a “banter ban”, claiming it risks policing speech and punishing employers unfairly over jokes or comments made in passing by customers. Industry leaders have also warned that the restrictions would “unfairly burden businesses”, while free-speech advocates point to the accompanying assessment to the bill, which acknowledges the potential risks to free expression on contentious debates.

But campaigners, trade unions and lawyers argue this is a necessary safeguard, not a gag order. The bill is backed by groups like the Fawcett Society, TUC, and UNISON, who point to consistent evidence of verbal abuse, sexual harassment and racism from customers, particularly targeted at young women, women of colour, and LGBTQ+ staff.

According to the TUC, three in five workers in customer-facing jobs have experienced abuse at work, yet most incidents go unreported, and employers often claim they can't do anything about it.

The plans also have wide support from the public. New polling from the TUC shows that eight in ten (79 per cent) of people support the Government’s proposals to protect workers from harassment, while just 14 per cent of respondents said they did not support the policy.

Context

Between 2010 and 2013, employers were already liable for repeated discriminatory behaviour by clients, customers or patients, but the protection was quietly repealed under David Cameron’s government’s push to cut regulatory red tape, despite objections from women’s groups and workplace rights organisations.

Since then, multiple legal reviews, including by the Government Equalities Office, have found that the lack of a third-party harassment law leaves workers exposed, especially in sectors like retail, healthcare, education and hospitality.

Imagine: a supermarket cashier repeatedly harassed by a regular customer, or a nurse experiencing racist abuse from a patient and their employer claiming they can't act, because the person isn’t an employee. That’s the legal gap the bill seeks to close.

What the law actually does

Rather than policing speech, the bill gives employers a duty to prevent harassment from third parties, and a legal responsibility to step in when it's known and repeated.

The new law wouldn’t make employers responsible for every offhand comment, there are three key conditions:

• The harassment must happen on at least two occasions,
  

• The employer must be aware of it,
  

• And they must have failed to take reasonable steps to stop it.

In other words: it’s not about banning jokes, but protecting workers from sustained, known abuse their employer chooses to ignore.

The bill also introduces a new legal duty for employers to take “all reasonable steps” to prevent sexual harassment at work. Failure to do so could result in compensation uplifts of up to 25 per cent in tribunal cases.

Critics calling this a “banter ban” are often ignoring that the bar for liability is higher now than it was a decade ago, designed to be proportionate, not punitive.

What the left is saying

“Sexual harassment continues to be widespread and often under-reported. Everyone has a right to feel safe and supported at work. The new preventative duty aims to improve workplace cultures by requiring employers to proactively protect their workers from sexual harassment." - Chief Executive of the Equality and Human Rights Commission, John Kirkpatrick

“No carve-outs are needed for the hospitality sector because it is experienced in dealing with incidents of harassment carried out by customers and making judgement calls about appropriate steps to take.” - Government minister and former Trade Unionist Baronness Maggie Jones

“This is about basic decency and common sense. It has nothing to do with ordinary pub banter. Nigel Farage and Kemi Badenoch are insulting the public’s intelligence by conflating abuse and harassment with banter. Protecting workers from harassment is one of the most popular policies in the government’s Employment Rights Bill – this just shows how out of touch Reform and the Tories are.” - TUC General Secretary, Paul Nowak

"Sexual harassment remains rife in workplaces across Britain [...] For any employee, but especially interns and volunteers, experiencing sexual harassment can destroy confidence and ruin early careers. My message to working women is clear: with our New Deal for Working People, a Labour government will have your back." — Angela Rayner, Deputy Prime Minister

What the right is saying

​​“Once again this government are clamping down on free speech and hammering our publicans in the process. With 50 pubs closing every month in the first half of this year, they need more support than ever not this nanny state nonsense.” - Lee Anderson, Reform UK MP

“I believe employers will interpret it as meaning that they have to protect their employees from overhearing jokes, remarks or expostulations that they may find offensive by virtue of their protected characteristics.” - Lord Toby Young, Peer and Founder of the Free Speech Union

“It is no longer ‘the customer is always right’ … now customers are third-party harassment risks to staff,” - Baroness Claire Fox, Peer and founder of the think tank the Academy of Ideas.

What happens next

The provisions are part of the Employment Rights Bill, which is currently at committee stage in the House of Lords.

The government has signalled broad support for harassment reforms, especially following widespread scandals around sexual misconduct in public life and high-profile tribunal cases.

But amendments to weaken or remove the third-party harassment clause may be tabled by some Conservative MPs, citing concerns about overreach and free speech.

Labour, trade unions, and women’s organisations are expected to lobby hard to keep the provision intact, while business groups have called for clear guidance to help employers comply.

If passed, the new duty on employers to prevent harassment, including by third parties, could come into force by late 2025, pending secondary legislation and guidance from the Equality and Human Rights Commission. ■

About The Lead Untangles: In an era where misinformation is actively and deliberately used by elected politicians and where advocates and opposers of beliefs state their point of view as fact, sometimes the most useful tool reporters have is to help readers make sense of the world.

The Lead Untangles is delivered each Friday by The Lead and focuses on a different complex, divisive issue with each edition. If there’s something you think we should be untangling, then contact ed@thelead.uk.

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About the author: Zoë Grünewald is Westminster Editor at The Lead and a freelance political journalist and broadcaster. She has worked in and around Westminster for five years, starting her career as a parliamentary clerk before throwing away the wig and entering journalism. Zoë then worked as a policy and politics reporter at the New Statesman, before joining the Independent as a political correspondent. When not writing about politics and policy, she is a regular commentator on TV and radio and a panellist on the Oh God What Now podcast.