Marc Glendening is Head of Cultural Affairs at the Institute of Economic Affairs.
Let’s get this right: this government is backing in principle a law that will make employers liable for things that have been said and done to their staff by third parties over whom they have absolutely no control.
The Worker Protection Bill – proposed by two Liberal Democrat parliamentarians – amends the Equality Act to make an employer legally responsible for harassing an employee for failure to take “reasonable steps” (undefined) to prevent harassment by a third party, as defined in the Equality Act 2010.
Under this law, harassment is defined as “unwanted conduct” which violates someone’s “dignity” in some undefined way, creating an “intimidating, hostile, degrading, humiliating or offensive environment”; harassment includes “spreading malicious rumours” and “picking on and regularly undermining someone”.
This will apply to harassment on any number of protected characteristics, including sex, race, gender reassignment, sexuality, age, religion and belief, and pregnancy, among other things.
The Government amended the Bill at the Report stage to try and ensure that employers cannot be taken to court by their employees for overheard conversations in which opinions concerning political, moral, religious, or social matters are expressed.
However as the Free Speech Union’s in-house lawyer, Bryn Harris has commented, this apparent protection leaves open the possibility for comments thought to be “indecent or grossly offensive” to be the basis of a legal action.
With the legislation using such vague, ill-defined language, it doesn’t take too much imagination to envisage this law being used by financially opportunistic, psychologically unstable, or hyper-sensitive employees against the enterprises for which they work.
It will also extend the reach of the state to limit what can be expressed beyond offices and factories into communal spaces such as pubs, theatres, sports venues, hospitals, everywhere potentially.
The willingness of some Tories to implement this measure is an indication of how philosophically rudderless the party now is. They really have no understanding of how the new culture-control left is incrementally working to establish ever-more-detailed state regulation of civil society.
Baroness Burt, a co-sponsor of the Bill, claims it is necessary to protect “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 these examples, she said, “currently have to rely on the good will of their employer in taking steps to protect them, rather than the law.”
So, let’s get this right: Burt wants bosses to be held responsible and punished for things over which they have self-evidently no control (unless, of course, they have Nostradamus like-powers of foresight).
Let’s say Burt holds a Lib Dem soirée at her home. Imagine if, hypothetically, an invitee then goes unexpectedly berserk and starts biting the other guests.
Should her ladyship be held legally responsible then simply because the event has taken place on her property? What school of liberal jurisprudence could possibly contend that this would an ethically legitimate path? How could she have possibly prevented such an act of harassment from taking place?
Leaving aside the inherent injustice of pursuing such a measure against a totally innocent party, how is the passing of this law going to create the fantastical safe space its Lib Dem co-sponsors are demanding? An inebriated, crazed sex pest in a public hostelry will not suddenly desist from obnoxious behaviour because an employer has a new legal liability. Nor is a spree killer in a branch of McDonald’s.
In any case, employers already have the incentive to protect their employees. A hostile work environment is more likely to increase staff turnover and also drive away customers. This creates real costs that businesses will minimise, unless they want to see costs increase and revenues decline.
At the heart of this law is an anti-humanist, new-left mindset: people are assigned either to social categories that are designated as oppressor or oppressed.
Those in the latter identity groups are deemed to be vulnerable; incapable of hearing unpleasant comments about themselves or opinions with which they disagree. They are not really perceived as fully formed adults, beings with agency who can exist in a social environment which does not entirely meet with their particular psychological, emotional requirements.
By contrast, owners and senior managers of enterprises are judged to be privileged, and so can have all kinds of irrational and unrealistic obligations placed upon them – for which they can be penalised if they fail to discharge them.
In this way, the authentically liberal-rational understanding of what constitutes the exercise of power and harmful conduct has become ridiculously stretched. Virtually any conduct, or statement of belief, that some (select) people disapprove of can thus be designated as illegitimate; an other-regarding (in the lexicon), aggressive act.
The aim, following on from the postmodernist theory of language which irrationally conflates words with coercive power, is to establish ever-more-detailed state control over virtually everything that is communicated, even informally.
The Worker Protection Bill, while not being able to do anything in practice concerning how the clients of enterprises behave towards staff, will nonetheless help create a censorious climate. Because it does not define what “reasonable steps” should be taken to prevent harassment, in practice it could encourage employers to partake in an over-cautious box-ticking exercise, just to try and show that they have done something.
This could mean discouraging staff and customers from partaking in discussions about political or cultural issues in order to avoid the risk of offence being caused; or the posting of notices stating what can and cannot be said, and how we should behave. Will the owners of pubs, restaurants and theatres be expected to undertake due diligence concerning every potential patron?
The Bill, therefore, replicates what has already been imposed within higher education with no-platforming and the creation of safe spaces. The new, culture-control left is working towards a society that is profoundly authoritarian in nature.
This is not an honest form of anti-liberal politics, along the lines of old-school socialism or fascism, but a much more subtle, third way variant. In theory, the economy and the institutions of civil society will remain under private ownership; in practice, each will be subject to extensive state surveillance and legal intervention.
This is why anybody who believes in politically liberal values, regardless of party, should block this sinister Bill.
Marc Glendening is Head of Cultural Affairs at the Institute of Economic Affairs.
Let’s get this right: this government is backing in principle a law that will make employers liable for things that have been said and done to their staff by third parties over whom they have absolutely no control.
The Worker Protection Bill – proposed by two Liberal Democrat parliamentarians – amends the Equality Act to make an employer legally responsible for harassing an employee for failure to take “reasonable steps” (undefined) to prevent harassment by a third party, as defined in the Equality Act 2010.
Under this law, harassment is defined as “unwanted conduct” which violates someone’s “dignity” in some undefined way, creating an “intimidating, hostile, degrading, humiliating or offensive environment”; harassment includes “spreading malicious rumours” and “picking on and regularly undermining someone”.
This will apply to harassment on any number of protected characteristics, including sex, race, gender reassignment, sexuality, age, religion and belief, and pregnancy, among other things.
The Government amended the Bill at the Report stage to try and ensure that employers cannot be taken to court by their employees for overheard conversations in which opinions concerning political, moral, religious, or social matters are expressed.
However as the Free Speech Union’s in-house lawyer, Bryn Harris has commented, this apparent protection leaves open the possibility for comments thought to be “indecent or grossly offensive” to be the basis of a legal action.
With the legislation using such vague, ill-defined language, it doesn’t take too much imagination to envisage this law being used by financially opportunistic, psychologically unstable, or hyper-sensitive employees against the enterprises for which they work.
It will also extend the reach of the state to limit what can be expressed beyond offices and factories into communal spaces such as pubs, theatres, sports venues, hospitals, everywhere potentially.
The willingness of some Tories to implement this measure is an indication of how philosophically rudderless the party now is. They really have no understanding of how the new culture-control left is incrementally working to establish ever-more-detailed state regulation of civil society.
Baroness Burt, a co-sponsor of the Bill, claims it is necessary to protect “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 these examples, she said, “currently have to rely on the good will of their employer in taking steps to protect them, rather than the law.”
So, let’s get this right: Burt wants bosses to be held responsible and punished for things over which they have self-evidently no control (unless, of course, they have Nostradamus like-powers of foresight).
Let’s say Burt holds a Lib Dem soirée at her home. Imagine if, hypothetically, an invitee then goes unexpectedly berserk and starts biting the other guests.
Should her ladyship be held legally responsible then simply because the event has taken place on her property? What school of liberal jurisprudence could possibly contend that this would an ethically legitimate path? How could she have possibly prevented such an act of harassment from taking place?
Leaving aside the inherent injustice of pursuing such a measure against a totally innocent party, how is the passing of this law going to create the fantastical safe space its Lib Dem co-sponsors are demanding? An inebriated, crazed sex pest in a public hostelry will not suddenly desist from obnoxious behaviour because an employer has a new legal liability. Nor is a spree killer in a branch of McDonald’s.
In any case, employers already have the incentive to protect their employees. A hostile work environment is more likely to increase staff turnover and also drive away customers. This creates real costs that businesses will minimise, unless they want to see costs increase and revenues decline.
At the heart of this law is an anti-humanist, new-left mindset: people are assigned either to social categories that are designated as oppressor or oppressed.
Those in the latter identity groups are deemed to be vulnerable; incapable of hearing unpleasant comments about themselves or opinions with which they disagree. They are not really perceived as fully formed adults, beings with agency who can exist in a social environment which does not entirely meet with their particular psychological, emotional requirements.
By contrast, owners and senior managers of enterprises are judged to be privileged, and so can have all kinds of irrational and unrealistic obligations placed upon them – for which they can be penalised if they fail to discharge them.
In this way, the authentically liberal-rational understanding of what constitutes the exercise of power and harmful conduct has become ridiculously stretched. Virtually any conduct, or statement of belief, that some (select) people disapprove of can thus be designated as illegitimate; an other-regarding (in the lexicon), aggressive act.
The aim, following on from the postmodernist theory of language which irrationally conflates words with coercive power, is to establish ever-more-detailed state control over virtually everything that is communicated, even informally.
The Worker Protection Bill, while not being able to do anything in practice concerning how the clients of enterprises behave towards staff, will nonetheless help create a censorious climate. Because it does not define what “reasonable steps” should be taken to prevent harassment, in practice it could encourage employers to partake in an over-cautious box-ticking exercise, just to try and show that they have done something.
This could mean discouraging staff and customers from partaking in discussions about political or cultural issues in order to avoid the risk of offence being caused; or the posting of notices stating what can and cannot be said, and how we should behave. Will the owners of pubs, restaurants and theatres be expected to undertake due diligence concerning every potential patron?
The Bill, therefore, replicates what has already been imposed within higher education with no-platforming and the creation of safe spaces. The new, culture-control left is working towards a society that is profoundly authoritarian in nature.
This is not an honest form of anti-liberal politics, along the lines of old-school socialism or fascism, but a much more subtle, third way variant. In theory, the economy and the institutions of civil society will remain under private ownership; in practice, each will be subject to extensive state surveillance and legal intervention.
This is why anybody who believes in politically liberal values, regardless of party, should block this sinister Bill.