This is the text of a letter I have sent this week – 31st March 2025 to the House of Lords setting our my difficulties with regard to the Employment Rights Bill and the proposed amendments to the Equality Acy 2010 and the impact this will have on premises  licence holders under the Licensing Act 2003. Do give me a call if you require further advice on how these provisions will affect your premises if they become law.

Dear Lord Offord of Garvel

Say No to Banter Bouncers

I’m writing to express my grave misgivings about clause 20 of the Employment Rights Bill.

Clause 20 amends section 40 of the Equality Act 2010 to impose a legal duty on employers to “take all reasonable steps” to prevent their employees being “harassed” by third parties, meaning they could be sued by their employees in the Employment Tribunal if they don’t do enough.

That may sound reasonable, but the Worker Protection Act 2024 already extends employers’ liability under the Equality Act for third party sexual harassment and of course any form of physical assault is a crime, so the ‘harassment’ we’re talking about here is verbal. Among other things, it will include conversations between customers or members of the public that are overheard by employees – not directed at them – and which they find offensive in virtue of one or more ‘protected’ characteristic. Not just their own, mind you. Under this new law, employees will be able to take offence on behalf of one of their colleagues. Given that we live in an age in which some are hyper-sensitive, the implications for the hospitality sector of turbo-charging the Equality Act in this way are mind-boggling.

What “reasonable steps” will a publican be expected to take to protect his or her staff from overhearing conversations between customers that might upset them? Will it be sufficient to include a notice on the wall warning customers to keep their opinions to themselves on issues like trans rights, mass immigration and the Israel-Palestine conflict? Or will publicans need to go further and employ ‘banter bouncers’ to eavesdrop on customers and eject anyone for saying something ‘inappropriate’ or ‘problematic’, such as telling a dirty joke?

It seems extraordinary that this government, which claims to be ‘pro-growth’, is about to impose additional compliance costs on a sector that’s already on its knees. According to the Campaign for Real Ale, 37 pubs close every week in Britain. There’s little doubt that this new law will accelerate that rate of closure – and those that remain will be sanitized ‘safe spaces’ in which no one dares express a controversial opinion or tell a joke.

But it isn’t just pubs. In football stadiums, it’s not unusual for fans to shout “Are you blind?” at the linesman for failing to rule a goal offside or spot a handball. Once this new law is on the books, a partially sighted steward who overhears this could sue the club for not taking “all reasonable steps” to protect him from being ‘harassed’ in this way. That, in turn, means that clubs will have to clamp down on any expostulations or chants that might cause offence. After that, it won’t just be Sir Keir Starmer’s beloved Arsenal stadium that’s a library!

The same goes for bars, restaurants and hotels. If a feminist walks into a hotel lobby wearing a t-shirt saying “Woman = Adult Human Female”, chances are she’ll be shown the door lest the slogan offends a trans or non-binary member of the hotel’s staff.

Expecting employers to police the speech of their customers in this way will have a hugely chilling effect on free speech. The same fearful atmosphere that prevails in so many workplaces since the passing of the Equality Act, with people looking over their shoulders before whispering what they really think about a controversial issue, will be extended to the venues people go to in their leisure time. The era when people could relax in the speakeasy atmosphere of their local will be at an end.

Clause 20 will also have a chilling effect on free speech on campus. At present, external speakers cannot be no-platformed by universities on the grounds that their mere presence will upset a member of staff with one or more protected characteristics because employers aren’t liable for third-party harassment. Once this new law is on the books, that will be a legitimate reason to no-platform a speaker like Kathleen Stock or Helen Joyce – and woke activists will have a field day.

In the Commons, the Opposition tabled an amendment to the Employment Rights Bill disapplying clause 20 in its entirety and another excluding pubs, sports and hospitality venues from its impact, but not a single Labour or Lib Dem MP voted for either. Amending the Bill in the House of Lords is our last chance to stop this attempt to ramp up the policing of speech outside the workplace.

Even if you don’t share my free speech concerns, please consider the cost of complying with this new layer of red tape. The government has estimated the compliance cost for large/medium business will be £30 and for small businesses £19 – a ludicrous under-estimate. Just think about what clause 20 will mean for struggling hospitality businesses:

• They will be forced to navigate the deeply challenging terrain of balancing competing rights under the Equality Act, deciding where to draw the line between allowing a customer to express a ‘protected’ philosophical or religious belief and protecting their employees from being offended or upset.

• They will be forced to take legal advice on avoiding liability under clause 20 and what new mechanisms to put in place to police third-party conversations.

• In the course of taking “all reasonable steps” to protect their employees from third party ‘harassment’, employers will have to take on additional employees to monitor customer conversations and implement a ‘woke’ code of conduct.

How can a government that claims to be ‘pro-growth’ be contemplating such a measure? The businesses effected are already on their knees as a result of Covid, the energy crisis, the rise in the cost of living, Business Rate hikes, changes in business property relief, increases in employer National Insurance Contributions (NICs) and the upping of the National Living Wage. Turbo-charging the Equality Act in this way – and expecting employers to comply with it – will be the final straw for many struggling businesses, further devastating our high streets and swelling the ranks of the unemployed.

One final point: when the Equality Act was originally passed, it included a clause making employers liable for the harassment of employees by third parties, but it was repealed in 2013 because it proved to be so costly and difficult for employers to comply with. We mustn’t make the same mistake again.

Yours sincerely,

Gareth Hughes

The importance of regularly reviewing and refreshing operational procedures cannot be overstated, especially in the realm of licensing reviews. Over my three decades of experience as a barrister in licensing and also dealing with many reviews under the Licensing Act 2003, a common issue emerges where long-standing and indeed very experienced license holders tend to rely on past successes, assuming all is well due to years of incident-free operation.

I’m afraid the – “we’ve always done it this way” defence – cuts no ice with licensing committees.

Recently, in a police review I handled for residents, it became evident that a license holder had neglected to review their premises’ license conditions since its grant in 2005. While superficial compliance was maintained, the actual implementation fell short. Routine had overtaken vigilance, leading to a lack of preparedness when faced with a serious incident. Many staff had stopped thinking and were rather mindlessly operating out of habit. The absence of practice drills and clear procedures resulted in chaos during critical moments, compromising the preservation of crime scenes – a grave concern for police.

In such instances, the argument of mere technical compliance holds no sway with elected members. This case underscores the critical necessity for license holders to regularly revisit all license conditions with their staff, ensuring a thorough comprehension of each requirement and how best to fulfil them.

Recently, I was invited by a client to participate in a training session at a prominent London establishment, engaging a large staff cohort in dissecting and debating all 72 licence conditions. This exercise not only sparked innovative ideas but also revitalized operational approaches, fostering a culture of continuous improvement and vigilance. Now that kind of initiative has an infinitely better chance of ensuring a premises licence can be preserved on an application for review!!

Recent reviews at iconic venues such as Heaven, Groucho Club and Drumshed suggest that procedures had perhaps become somewhat tired and needed to be augmented by the addition of further new conditions which happened on review allowing each premises to remain open.

Photograph: Kate Busz for Time Out

In licensing committee hearings when applying for a premises licence under the Licensing Act 2003 you never get a second chance to make a first impression

In the hospitality industry, understanding your business concept is paramount for success, particularly when dealing with licensing committees and legal processes. Businesses that have a clear vision tend to thrive, while those lacking a defined concept may encounter challenges such as licensing issues, planning obstacles, or even rejection.

During a recent licensing committee session in central London, I observed an applicant struggling to articulate their business concept, leading to an unfavourable outcome amidst opposition. Witnessing their investments in time and money go unrewarded was disheartening.

Drawing from my experience representing successful businesses in legal settings, I’ve learned the significance of a well-defined business identity. Firms that grasp their identity can effectively present their case, inspiring confidence in decision-makers to grant the required licenses. This clarity is instrumental in obtaining a license that aligns with the business’s goals, ensuring a seamless operational journey.

Notable examples include Inception Group’s Mr Fogg’s venues, ETM, and Maven Leisure’s sports and rooftop premises, along with competitive socializing venues like Flight Club and Ping Pong. A distinctive image that appeals to officials and committee members simplifies the license application process and enhances the chances of securing a valuable trading premises license. Vague applications often face rejection by committees.

Give me a call so that we can start assisting you through all of this and give guidance on how to present the best case to committees of elected politicians and to magistrates

What is the effect on premises licensed under the Licensing Act 2003?

As I have previously posted setting out my concerns about the new proposals, pubs and other customer-facing businesses could feel obliged to restrict discussions on sensitive topics like transgender rights to mitigate legal risks under Labour government’s Employment Rights Bill. This would in my view having a chilling effect on custom at a time when things are hard enough for our hard pressed hospitality sector.

Now – the Equality and Human Rights Commission (EHRC) has cautioned that the proposed rules safeguarding employees from harassment by customers might overly limit freedom of expression, especially in instances of overheard conversations.

Clause 16 of the Employment Rights Bill aims to make employers accountable for third-party harassment of their staff, defining harassment as unwanted behavior related to a protected characteristic that undermines an individual’s dignity. The EHRC expressed concerns to MPs about the challenges in determining harassment in cases of overheard remarks, particularly if the expressed opinion qualifies as a philosophical belief under the Equality Act 2010, thus warranting anti-discrimination protection.

The EHRC highlighted the complexity of defining “philosophical belief,” encompassing perspectives on religion and transgender rights. The Commission noted the legal intricacies around this definition, which might lead businesses to proactively restrict discussions to avoid legal repercussions.

In light of these complexities, the EHRC recommended further scrutiny of clause 16 to ensure clarity and fairness in implementing the proposed regulations under the Bill. This proposal is not going away – the Conservative government last year rightly focused on sexual harassment and amended the law accordingly and dropped these proposals. Now they are back and the EHRC is expressing its concerns.

The Bill as it is currently drafted in February 2025 means that for example, a group of people having a debate about transgender rights may have to be told to be silent on this issue banter bouncers as it could possibly offend a member of staff who may take exception. Gender critical beliefs are a protected characteristic under the Act  This can only have a chilling effect om free speech in our pubs and bars which have over centuries been the for a forums for debate about the issues of the day.

In another example, a group of people watching a football match on a TV in the bar might shout out that the referee is blind ( a common refrain) and thus offend a partially sighted barman or waitress. There is no end to it!

Contact me if you need further advice on what promises to be a very tricky area of the law to navigate for licence holders.

“One of the great features of working alongside and acting for some of our great friends and clients in the hospitality sector is that you get to do wonderful things like walking the stage at the iconic Koko – the old Camden Palace. The boards have been trodden by Charlie Chaplin, The Rolling Stones, Madonna, Amy Winehouse and only a few weeks ago Dua Lipa plus countless other legendary performers over the last 100 years. We secured an 08:00 hour premises licence and doubled the capacity in a stress area to 1500 in an application under the Licensing Act 2003 which took two days in hearing.

The operators have done a simply magnificent job spending millions on refurbishing this wonderful venue including the celebration of the life of Dame Ellen Terry (pictured below) who played here in the 19th century and was I believe an aunt of Sir John Gielgud. What fun and very proud to be working with these guys. “

The current scenario is one on which many of us in the legal profession have pondered for many years and highlights a pressing issue in licensing hearings, particularly when reviews are initiated by residents. The absence of parties at these crucial hearings can have severe implications, as seen in a recent case I handled for a reputable client. Despite proactive measures taken by our client, including engaging with residents and presenting a robust defence supported by expert reports, the review proceeded without the residents’ presence. They just didn’t bother to turn up!

The lack of attendance resulted in the collapse of the case against our client, leaving them burdened with substantial costs incurred in preparing for the hearing. The case melted away like the current snows in the rising sun. There is a glaring gap in the system under the Licensing Act 2003 as licensing subcommittees lack the power to allocate costs, even when justified. This leaves businesses like those in our great hospitality sector grappling with financial setbacks, especially during critical periods such as the festive season. Owners and management also have their focus taken off the success of the business during such crucial periods.

Considering the significant impact of no-shows on the involved parties, it raises a pertinent question: Should licensing committees be empowered to order costs in situations where parties fail to attend hearings without prior notice, compelling others to bear the financial brunt of defending against unsubstantiated claims? This vital consideration aims to ensure fairness and accountability in licensing proceedings, preventing undue financial strain on businesses navigating already challenging operational landscapes.

Your thoughts on this matter are invaluable as we strive to advocate for a more equitable and efficient licensing framework that safeguards the interests of all stakeholders involved.

Is the tip for the waiter in the bar/restaurant going into a pot for his/her benefit? What should employers do with tips when they have control over them?

These questions and many more were answered last year in the Employment (Allocation of Tips) Act 2023 which amended the Employment Rights Act 1996.

Two million employees across our great hospitality sector are affected by this new legislation and this is now so important given that 80% of bills in bars and restaurants are now paid on debit cards with many establishments moving to cashless systems.

Very briefly the new 2023 Act provides the following:
(i) all tips gratuities over which the employer has control must be paid by the end of the following month without deductions
(ii) obligation to ensure fairness of arrangements for distribution among workers either via employer or independent tronc
(iii) a new code of practice from Secretary of State ensuring a fair distribution

It also ensures that employers have a written policy on the distribution of tips.

Along comes the new Bill and directs employers to consult with representatives of an independent trade union recognised by the employer in respect of workers who are likely to be affected by the policy, or representatives appointed or elected by those workers and having authority to receive information and to be consulted about the policy on behalf of those workers.

It appears that guidance issued by central government was not enough for this new government and now employers must involve the trades unions in crafting and commenting on their policies. There will also be a duty to make known to the employees any comments contained in the consultation on the policy.

I am getting a lot of calls from clients on many aspects of the new Bill affecting our sector so do let me know if you need any more detailed guidance.

New legislation on the way to compel licensees to stop “banter” in pubs and restaurants and other places of entertainment. Yes you read correctly!!

This is a very important piece of amending legislation just introduced by the Labour government this week as part of the new Employment Rights Bill 2024

The Bill seeks to amend the Equality Act 2010, which among other things already imposes a legal duty on employers (bar owners) to protect workers (bar staff and waiters) from harassment by other employees defined as “unwanted conduct relating to a protected characteristic” (i.e., age, disability, gender reassignment, race, religion or belief, sex or sexual orientation) where that conduct has the purpose or effect of “creating an intimidating, hostile, degrading, humiliating or offensive environment”.
 
 This amendment will expand that duty, rendering bosses additionally liable for harassment of their employees by members of the public that they come into contact with while doing their jobs. The bill actually seeks to extend third-party liability to every type of ‘unwanted conduct’ already prohibited by the Equality Act 2010, including – overheard conversations. In other words, if the bill becomes law, employers will have a duty to protect their workers from overhearing ‘upsetting’ remarks made not only by their colleagues, but by third parties as well!!

Are you going to need to employ “banter” police in your restaurants and bars?

The question arises as to what systems bar and pub owners are meant to have in place to prevent a customer expressing a political opinion and upsetting a member of staff? Bring on yet more guidance and red tape for our already embattled sector.

This can only present a yet further chilling effect on free speech in bars, pubs, clubs and restaurants etc as owners will need to constantly have an ear open to what customers are saying and intervene if it is felt that a private conversation is straying into territory about which a member of staff may feel uneasy and harassed. It may also put customers off going to such premises if they feel their conversations might be overheard and they could be asked to desist or leave as a result of what’s being said.

Employers could also face pre-emptive action from staff if there is no policy in place to deal with remarks made. (“No banter allowed” signs maybe?)

This is not an easy area of the law for premises with licences under the Licensing Act 2003 or the Gambling Act 2005  so please do give me a call or get in touch about the detail and possible consequences. I will keep you posted on developments as this very large Bill tracks its way through Parliament

Delighted to have been a part in securing this great licence for a wonderful event in Chiswick Park coming up next week. Do try and attend if you can and live nearby. Its all overseen by Tom Kerridge, super chef and features great food and drink as well as wonderful music this year from McFly and Ronan Keating. A great way of blending food and entertainment in a day or even over the weekend.

When I last reported that the Government did not intend to continue the regulatory easement of off sales after September 2023 there was a degree of consternation amongst operators in our great hospitality sector. However, I’m delighted to report that the Government has now conceded the points that we made to it on this issue in consultation and subsequently and has agreed that the temporary permission allowing off sales should be continued until 31st of March 2025.

It is also somewhat heartening to see the Home Office acknowledge within the text of the revised guidance that it is clearly more then labour shortages and the cost of living crisis which is affecting the bottom lines of many great restaurants and bars across the United Kingdom. These points were made during consultation in a submissions against the extension of the temporary permission but it is self evidently clear that if you lock down an entire economy and particularly an entire sector such as hospitality for many months it is highly likely that many of these businesses will either go to the wall [which many did] or will find it incredibly difficult to trade in a post lockdown environment. The Government cannot expect people to turn round businesses which have been deprived of the lifeblood of income for many months particular during an energy crisis and then carry on as if nothing had ever happened once the forced closures come to an end. There are countless businesses still reeling financially from the effects of the lockdowns which government imposed upon them and it is right that government now assist these businesses to bounce back. It is also to be hoped that the Government makes these proposals permanent as from March 2025 because it will take years for small restaurants and bars to recover.

I have attached the document to this post for you to read at your leisure. It was published on 22nd of September.  You can see the whole document here Alcohol licensing: guidance on temporary off-sales permissions – GOV.UK (www.gov.uk)

It should be remembered that the temporary extensions only have effect until 11:00 PM and that if you wish to have off sales after this time then a variation application will have to be made to the licencing authority in the usual way.

We are advising clients and other operators on the off sales provisions currently and if you have any issues which require resolution do get in touch through our contact page.