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.