It's no joke

The Sunday Telegraph reports that pub licensees will be turned into “banter cops” under proposed reforms to workers’ rights.

Provisions in the Employment Rights Bill mean equality laws will be updated to make employers liable for staff being offended by “third parties”, such as customers or members of the public. The laws would introduce a legal requirement for companies and public bodies to take “all reasonable steps” to prevent harassment by third parties relating to a “protected characteristic” such as sex, gender reassignment or age.

Some commentators have dismissed this as merely protecting staff from direct harassment, but to a large extent that is already covered by existing legislation. This goes much further to encompass offence called by anything that employees might overhear. Pubs cover a wide spectrum, and many have a distinctly robust and rumbustious atmosphere where there may be plenty of humour and banter that would never be encountered on broadcast media. Some sensitive soul working behind the bar could all too easily take offence at a particular joke and run to the solicitors.

If a particular line of conversation, such as maybe something of a sexually frank nature, or laced with four-letter words, makes people feel uncomfortable, then the correct response should be a word from the licensee to tone it down rather than recourse to the law. But it all depends on the character of that particular establishment. Not every pub is suitable for maiden aunts.

Industry spokesperson Kate Nicholls, who aims to influence policy-makers and thus always has to speak guardedly, sounded a note of caution:

Kate Nicholls, chief executive of UKHospitality, said that staff in restaurants, bars, pubs and hotels are working in a “social environment” where “there are jokes and people are boisterous”. She said while everyone wants to make sure their staff are protected “we don’t want to be policing our customers’ behaviour”, adding that she is keen to work with ministers to ensure “undue restrictions” are not imposed on customers.

This may in the end not amount to much, but the risk is that one or two high-profile lawsuits will force venues to take a risk-averse approach and try to eliminate that anything that may be offensive to the ear of the listener. Maybe pubs need to take a leaf out of the BBC’s book from 1948 and publish a list of topics that are considered unsuitable for humour. They could consult Humphrey Smith for advice.

“the BBC thought jokes about lavatories, fig leaves and ladies' underwear would be too strong for public consumption… Any references to drink were permissible only ‘in strict moderation’… the BBC also put a ban on suggestive references to dangerous subjects such as honeymoon couples, chambermaids, rabbits, lodgers and commercial travellers. Writers had to avoid vulgar use of words such as ‘basket’.”

It goes well beyond humour and conversational banter to extend to the policing of opinions. Free speech seems to be increasingly becoming a dirty word, and we often see examples of “no-platforming” and violent demonstrations against speakers expressing controversial but entirely legal views. This will mainly affect venues such as theatres and conferences centres, but pubs are not entirely immune, especially if they have meeting rooms that are used to host various events.

What are the chances that some delicate member of staff will raise an objection if they hear such horrendous opinions being expressed as “no woman has a penis”, “Israel has the right to self-defence” or “there is no climate crisis”?

Nobody should have the right to be protected from offence, provided that speech falls within the law. Some environments by their nature are host to a robust discourse, and anyone of a censorious nature should perhaps consider whether they are appropriate places for them to work. If you don’t like blood, don’t work in a butcher’s shop. But there is a genuine risk that, in an effort to live a quiet life and avoid vexatious litigation, this legislation will throw a stifling blanket over free expression.