The EHRC has briefed MPs on the ‘cumulative implications’ and ‘unintended consequences’ of the Employment Rights Bill, questioning the compatibility of the rights to freedom from harassment and freedom of expression.
With the Employment Rights Bill at the House of Commons committee stage, the Equality and Human Rights Commission has published a parliamentary briefing specifically on the legislation’s provisions on: harassment, including harassment from third parties; zero-hours contracts; employers’ equality duties; and the enforcement of labour market legislation.
While the equality watchdog believes many of the measures in the bill have the “potential to reduce workplace inequalities”, it notes that because much of the detail will be decided by secondary legislation, this could limit parliamentarians’ ability “to understand its potential, cumulative implications and to assess the risk of unintended consequences for some protected characteristic groups”.
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EHRC chief executive John Kirkpatrick said: “We know there are longstanding inequalities in the labour market. Women, disabled people, younger and older workers and certain ethnic groups are all over-represented in low-paid or insecure work.
“There are measures in the Employment Rights Bill, such as the reform of zero-hours contracts, which are likely to benefit these groups. But there needs to be a sufficiently detailed equality impact assessment to inform judgments about whether these measures will effectively tackle labour market inequalities, and a commitment to monitor the impact of the legislation once enacted to assess whether it has.”
“The UK government has acknowledged the potential for unintended consequences in its economic analysis and summary impact assessment. We have invited the committee to consider carefully the balance between, for example, rights to freedom from harassment and freedom of expression.”
Third-party harassment
In its briefing the EHRC said that evidence indicates that sexual harassment by third parties is a significant issue, citing its own 2018 report which found that a quarter of respondents who reported harassment had been sexually harassed by third parties. This was a particular issue for people in customer-facing roles.
However, it said evidence of the prevalence of third-party harassment at work for protected characteristics beyond sexual harassment, such as religious or philosophical belief, is limited.
It highlighted that, when the Worker Protection Act 2023 (which came into force in October 2024) was progressing through Parliament, protections from third-party harassment were removed due to concerns that it could disproportionately curtail the rights to a private and family life and to freedom of expression under Articles 8 and 10 of the European Convention on Human Rights (ECHR).
Particular concern was raised about potential interference in private or overheard conversations. It said the government has not addressed the complexity that would be faced by employers in determining whether conduct has a harassing effect, particularly in the case of overheard conversations.
“This difficulty can be compounded if the conduct by the third party is the expression of an opinion that may amount to a philosophical belief under the Equality Act 2010 and therefore attract protection from discrimination,” says the briefing. “The legal definition of what amounts to philosophical belief is complex and not well understood by employers. It is arguable that these difficulties may lead to disproportionate restriction of the right to freedom of expression under Article 10 ECHR.”
A spokesman for the Office for Equality and Opportunity said: “Free speech is a cornerstone of British values but of course, it is right that the Employment Rights Bill protects employees from workplace harassment, which is a serious issue.
“As with all cases of harassment under the Equality Act 2010, courts and tribunals will continue to be required to balance rights on the facts of a particular case, including the rights of freedom of expression.”
Enforcement of employment rights
In addressing concerns on other aspects of the bill, the EHRC also questioned how the legislation would be enforced and whether sufficient resources would be made available.
The Employment Rights Bill also creates a new state labour market enforcement body – the Fair Work Agency – bringing together existing state labour market enforcement functions.
The EHRC said it was concerned about the possibility that government could extend the remit of the Fair Work Agency to cover other issues, such as discrimination law, in the future.
“Extending the remit could create a fragmented and complex system of responsibility for enforcement and undermine our statutory role as enforcer of the Equality Act 2010. This may create gaps in enforcement and regulatory overlap,” says the briefing. “The UK government should ensure that the new agency complements our regulatory role and does not duplicate or undermine it.”
Kirkpatrick added: “For this legislation to have the desired effect, it needs to be enforceable. For it to be enforceable, we need clarity on the role of regulators – including the EHRC – and sufficient resource to ensure compliance.”
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