‘Banter ban’ debate rages in House of Lords
A House of Lords debate on the details of the Employment Rights Bill sparked a row over ‘cancel culture’ on Monday after members took sides on a clause dubbed the “banter ban.”
The debate hinged on the definition of “third party harassment” and on whether employers should face a legal duty to protect staff from “overhearing jokes…they may find offensive.”
The concerns brought forth by Lord Toby Young, general secretary of the Free Speech Union, involved a clause which states that employers should protect their employees from third party harassment of a non-sexual nature, primarily by customers.
Young moved to amend the clause by adding that “the definition of ‘harassment’ cannot include conversation or speech involving the expression of an opinion on a political, moral, religious or social matter, provided the opinion is not indecent or grossly offensive.”
Young calls the clause a “banter ban” and “a solution in search of a problem.”
The employer’s role
Young said: “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.”
He claimed “the hospitality sector is deeply concerned about liability for indirect non-sexual harassment by third parties.”
Baroness Maggie Jones, on behalf of the government, responded that “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.”
Jones cited the example of how to handle customers who are racist when drunk. “I reiterate that this clause is about harassment and not banter,” she said.
“Employees can experience racial harassment or harassment related to their disability or other protected characteristics. In the case of non-sexual harassment, not even the possibility of enforcement exists at present.” Jones said.
The peers in favour of Young’s amendment defended it by arguing that the clause being debated would create an unreasonable burden on employers which would disproportionately hurt smaller businesses.
“It will plunge employers into a legal quagmire, force them to spend a fortune on obtaining and then implementing legal advice and inevitably have a chilling effect on free speech in those very places – pubs, bars, restaurants, football stadiums and universities – where people should be free to speak their minds,” Young said.
Defining harassment
Baroness Kay Carberry responded that anything that would be deemed “harassment” in the clause would fall under the definition of harassment in the 2010 Equality Act, and would have to be “to the purpose of violating the person’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment.”
Carberry added:“if a case like this ever ended up in court, which is highly unlikely, the court would also have to take into account all the circumstances and would need to decide whether it was reasonable for the overheard conversation to have had the effect of violating dignity or creating a hostile, degrading, humiliating or offensive environment.”
Baroness Claire Fox countered Carberry’s case that the definition of harassment is sufficiently clear and narrow; “that harassment has a well understood meaning is not true in the 2025 era of lawfare.”
Baroness Fox added that spoken words, banter, jokes, written words, imagery, physical gestures, facial expressions and posts on social media can constitute harassment under the Equality and Human Rights Commission.
“It is no longer ‘the customer is always right’ … now customers are third-party harassment risks to staff,” said Baroness Fox.
Lord Christopher Fox, on the other hand, accused Lord Young’s camp of crafting a straw man argument, and “either wittingly or unwittingly misapprehending the purpose” of the third party harassment clause, leading to “synthetic … rage.”
The point of the Bill is not “policing personal conversations” but rather to deal with “workplace bullies by customers,” Lord Fox clarified.
Business groups have collectively voiced concerns around other elements of the Bill, saying it will damage growth and living standards.