New law lets staff sue their boss if customers offend them

Rishi Sunak
Rishi Sunak

Rishi Sunak is facing a Tory revolt over “draconian” laws that will allow shop assistants, bar staff and doctors to sue their employers if a member of the public offends them at work.

New harassment rules on the brink of becoming law will enable medics to sue the NHS if a patient insults them, allow bar staff to take legal action against landlords if they are offended by drunk punters, and let baristas take coffee shop owners to a tribunal if they overhear offensive remarks made by customers.

Senior Tories warn the proposed law will lead to an explosion of litigation and force business owners to run their establishments like a “police state”.

A Whitehall source said ministers were “sleep walking” into a “big expansion” of the Labour-era Equality Act, which Mr Sunak had previously blamed for enabling “woke nonsense to permeate public life”.

The row will come as a major embarrassment to the Prime Minister, who has been seeking to position the Conservatives against “woke” policies that are unpopular with many business owners and working-class voters.

Tory backbenchers accused the Government of “taking their eye off the ball” by supporting a “mad” Private Member’s Bill, sponsored by two Liberal Democrat parliamentarians, on course to become law within weeks.

The Bill was waved through the Commons without a vote during a Friday sitting when most MPs were back in their constituencies.

Ministers are under pressure to ditch or gut the legislation, with backbenchers warning that purported “freedom of speech” protections added into the Bill will do little to save employers from crippling litigation.

Businesses must take 'all reasonable steps'

The Worker Protection Bill will make employers liable for staff being harassed by “third parties” such as customers or members of the public. It introduces a legal requirement for companies and public bodies to take “all reasonable steps” to prevent this.

Jacob Rees-Mogg, the former business secretary, said establishments that “serve the public can expect to run a police state in their business”, while Sir John Hayes, the chairman of the Common Sense Group of Tory MPs, said it had “sinister implications”. Another Conservative MP, Craig Mackinlay, said he believed the change was “draconian”.

Lord Frost, the former Cabinet Office minister, described the Bill as a “woke, socialist measure” that would “have a chilling effect on every conversation in a workplace”.

Lord Strathcarron, a Tory peer who runs a publishing firm, said bookshops could be put off inviting authors such as JK Rowling to give talks, “on the off chance that one of the author’s fans might be wearing a T-shirt that says, ‘Woman Equals Adult Human Female’, knowing that an employee could sue for hurt feelings – real or vexatious”.

Other scenarios, he added, could include “somebody going into the Dog and Duck ... then insulting the barman, and the barman suing the landlord. Or someone going for an MOT, the car fails, and they slag off the mechanic and the mechanic sues the garage owner. It’s mad and no one’s thought it through.”

While a separate clause in the Bill putting a duty on bosses to prevent the sexual harassment of employees commands broad support, peers are demanding the Government drop the introduction of a new obligation on employers to prevent harassment by third parties that relates to a “protected characteristic” such as sex, gender reassignment or age. Critics fear this will lead to companies having to expel clients over trivial incidents and facing costly litigation by staff.

Bill goes further than Equality Act

It goes significantly further than a measure in the original Equality Act, which made employers liable for third-party harassment after three separate incidents – known as the “three strikes rule”. The third-party provisions were stripped out of the legislation altogether by the Coalition government in 2013. A source said they were now effectively being reintroduced but without equivalent safeguards for employers. It will also apply to public sector organisations such as hospitals, schools, and police forces, placing a significant new burden on taxpayer-funded bodies to protect themselves from being sued by their staff.

Baroness Burt of Solihull, the Lib Dem co-sponsor of the Bill, told the Lords it would offer new protections to “retail staff who face racist abuse from customers, NHS workers who are subject to homophobic harassment by patients, and pub staff who are harassed by drunken customers in relation to their sex”, all of whom “currently have to rely on the good will of their employer in taking steps to protect them, rather than the law”.

The Bill cleared the Commons with limited scrutiny, receiving its first reading shortly before Boris Johnson’s government collapsed and its second on Friday Oct 21, the day after Liz Truss quit as prime minister.

Lord Strathcarron suggested the political “chaos” at the time meant “everyone was taking their eye off the ball”. Another Tory peer, the Earl of Leicester, expressed “surprise” that the Bill had progressed through Parliament on the watch of Kemi Badenoch, who holds the equalities brief. He said: “I hope we can make her aware of the dangers that this Bill presents.”

Ministers are coming under mounting pressure to ditch or change the wide-ranging harassment clause or withdraw their support for the legislation altogether, with Tory peers preparing to put forward a list of amendments.

During his campaign to succeed Mr Johnson, Mr Sunak promised to stop “mission creep” relating to the Equality Act, which he described as “a Trojan horse that has allowed every kind of woke nonsense to permeate public life”.

Fears for free speech

While the Government amended the Bill to try to assuage concerns about free speech, Tory critics are united in saying that did not go far enough.

An employer would only be protected from a claim if four conditions were met simultaneously, which critics warn is too high a bar to avoid being sued.

An employer would have to prove that the offending comment was overheard by their employee, not directed at them, was unintentional, expressed an “opinion on politics, religion or social matters” and not grossly offensive or indecent.

If up to three of these conditions apply to the incident in question then the employee could still sue their boss. Therefore, a barman who overheard what they considered to be offensive “banter” could take action unless their landlord could prove the joke had expressed a political, social or religious opinion.

Lord Strathcarron said it would be “almost impossible” for employers to protect themselves.

Wera Hobhouse, the Lib Dem frontbencher who sponsored the Bill along with Lady Burt, told The Telegraph: “One person’s banter is another person’s harassment.

“My Bill aims to create workplaces where employers ensure that their employees get a proper hearing if they feel they are being harassed, rather than being ignored or dismissed. This Bill is not about stopping respectful discussion of controversial issues.”

A spokesman for the Government’s Equalities Office, said: “Those that seek to harass people will not be tolerated, which is why this legislation will ensure that employers are legally liable if they fail to protect their employees. However, trivial upset is not a matter for legislation, and that is why we have amended the Bill to ensure freedom of speech is protected.

“The Bill will provide the necessary protections for workers, whilst ensuring no one is silenced for simply expressing their legitimately held opinions.”