The EHRC briefed the MPs about the “cumulative implications” and the “unintended consequences” of the Employment Rights Bill. They questioned the compatibility between the freedoms of expression and the freedom to be free from harassment.
The Equality and Human Rights Commission, which is currently advising the House of Commons on the Employment Rights Bill, has released a briefing for parliamentarians on the specific provisions of the bill, such as: harassment (including harassment by third parties); zero-hours contracts, employers’ duties on equality; and enforcement of labour legislation.
The equality watchdog notes that while many of the proposed measures have “potential” to reduce workplace inequality, secondary legislation will determine much of their details. This could limit the ability of parliamentarians to “understand its potential, to understand the cumulative implications, and to assess any risk of unintended effects for certain protected characteristic groups”.
John Kirkpatrick, the chief executive of EHRC, said: “We are aware that there have been longstanding inequalities on the labour market. Women, older and younger workers, as well as disabled people and certain ethnicities, are overrepresented in low-paid and insecure jobs.
The Employment Rights Bill contains measures, like the reform of zero hours contracts, that are likely to be beneficial for these groups. There needs to be an equality impact assessment that is sufficiently detailed to make informed judgments on whether these measures are effective in tackling labour market inequality, and to commit to monitoring the impact of legislation once it is enacted.
The UK government acknowledged that there could be unintended consequences when it conducted its economic analysis and impact summary. We asked the committee to carefully consider the balance between rights such as freedom of expression and freedom from harassment.
Third-party harassment
In its briefing, the EHRC stated that there is evidence that shows that sexual harassment from third parties is an important issue. Citing its own report that found that one quarter of respondents had been sexually harassed. It was especially a problem for those in customer-facing positions.
The evidence that third-party harassment is occurring at work, for reasons other than sexual harassment (such as religion or philosophical beliefs), is very limited.
The report highlighted the fact that when the Worker Protection Act of 2023 was being debated in Parliament (which entered into force on October 20, 2024), protections against third-party harassment had been removed because of concerns that this could disproportionately restrict the rights to a family and private life, and freedom of expression, as outlined by Articles 8 and 10, of the European Convention on Human Rights.
A particular concern was expressed about the potential interference with private or overheard discussions. The government did not address the difficulty employers would face in determining if conduct had a harassment effect, especially in the case overheard conversation.
‘s briefing states that “This problem can be exacerbated if third-party conduct is an expression of an idea which may qualify as a philosophical belief in the Equality Act 2010, and thus attract protection against discrimination.” The legal definition of philosophical belief can be complex, and employers may not understand it. These difficulties could lead to an disproportionate restriction on the right to freedom to expression under Article 10. ECHR.
A spokesperson for the Office for Equality and Opportunity stated: “Freedom of speech is an important part of British values, but it’s right that the Employment Rights Bill provides protection to employees against workplace harassment. This is a serious problem.
As with all harassment cases under the Equality Act 2010 courts and tribunals must continue to weigh rights according to the facts in a specific case, including freedom of expression rights.
Employment rights and enforcement
The EHRC expressed concerns about other aspects of this bill. They also asked how it would be enforced, and if sufficient resources would available.
The Employment Rights Bill creates the Fair Work Agency, a new state agency for labour market enforcement. It brings together all existing state functions.
The EHRC expressed concern about the possibility of government extending the Fair Work Agency’s remit to include other matters, such as the discrimination laws, in the future.
“Extending our remit may create a complex and fragmented system of enforcement responsibility and undermine our role as enforcers of the Equality Act 2010”. The briefing warns that this could lead to gaps in the enforcement of laws and overlap between regulations. The UK government must ensure that this new agency complements and enhances the existing regulatory role, not to duplicate it.
Kirkpatrick said: “This legislation needs to be enforced to have its desired effect.” To make it enforceable, we must have clarity about the role of the regulators – including the EHRC. We also need sufficient resources to ensure compliance.
