The Banter Burden: Preventative Liability and the Quiet Narrowing of the Public Square
The Employment Rights Act 2025 has been presented as a measured strengthening of worker protection. No serious Christian disputes that harassment — properly understood as discriminatory hostility — must be opposed. The dignity of the human person is not negotiable.
Yet the Act effects a structural shift whose implications extend well beyond workplace discipline. By imposing a proactive duty on employers to take “all reasonable steps” to prevent third-party harassment — including speech by customers, attendees and members of the public — Parliament has altered not the statutory definition of harassment, but the ecology in which moral and philosophical debate occurs.¹
The change is subtle in doctrine, significant in consequence.
Harassment in Law: A Narrow and Qualified Definition
Under the Equality Act 2010, harassment is defined as unwanted conduct related to a protected characteristic which has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.² Protected characteristics are set out in section 4 of the Act.³
This definition does not criminalise offence as such. It does not prohibit general swearing, political disagreement, theological assertion or the calm articulation of contested moral belief. Crucially, the statute contains an objective safeguard: tribunals must consider whether it was reasonable for the conduct to have that effect.⁴
Judicial authority confirms this balance. In Lee v Ashers Baking Company Ltd, the Supreme Court rejected the proposition that causing offence is sufficient to establish unlawful discrimination.⁵ In Forstater v CGD Europe, the Employment Appeal Tribunal affirmed that gender-critical beliefs are capable of protection under the Equality Act as philosophical belief.⁶ Article 10 ECHR, incorporated through the Human Rights Act 1998, protects freedom of expression.⁷
The legal architecture, in principle, preserves pluralism.
From Reactive Response to Preventative Obligation
Historically, employer liability for third-party conduct was largely reactive. A specific third-party harassment provision was repealed in 2013.⁸ The Employment Rights Act 2025 restores and strengthens preventative responsibility. Employers must now demonstrate that they took “all reasonable steps” to prevent harassment by non-employees.¹ Time limits for bringing tribunal claims are extended.¹⁰ Government impact assessments acknowledge compliance and familiarisation costs arising from these new obligations.¹¹
The shift is subtle but profound: liability may now turn on whether preventative systems were sufficiently robust before any complaint arose.
Where once the focus lay on responding to misconduct, it now lies on anticipating the possibility of perceived hostility.
This transforms incentives across civil society.
Perception, Process and Institutional Risk
Harassment may arise where conduct has the “effect” described in section 26, subject to reasonableness.²⁴ A staff member who perceives overheard speech as hostile may initiate complaint. Whether that perception ultimately satisfies statutory thresholds is for a tribunal to determine under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.¹²
But complaint alone triggers process. Process carries cost. Defence requires documentation.
In such a climate, employers do not ask merely “Is this lawful?” but “Could this expose us?”
That recalibration of incentives shapes behaviour.
From Pub Function Room to University Lecture Hall
Consider a local example. A function room is hired for discussion of sex and gender policy. The event is peaceful. The topic is lawful. The expression of gender-critical belief is protected in principle.⁶ Under strict statutory analysis, calm political debate would rarely satisfy the harassment threshold; there must be conduct related to a protected characteristic that reasonably creates a hostile or degrading environment.²⁴ Freedom of expression remains protected.⁷
Yet management must weigh:
- The extended tribunal window.¹⁰
- The adequacy of documented preventative measures.
- The cost of defending a complaint.
- The reputational implications of controversy.
Cancellation may appear the safer course.
The speech is not banned. It is avoided.
This dynamic does not stop at social venues. Universities, conferences, professional associations and debating societies are employers. They host speakers and facilitate debate on contested questions — sex, anthropology, conscience, religious doctrine. They are also subject to equality law.
Universities simultaneously bear statutory duties to secure lawful free speech under the Higher Education (Freedom of Speech) Act 2023.¹³ In principle, equality law and free speech obligations coexist. In practice, administrators operate within risk-management frameworks. A complaint under equality legislation is immediate and concrete. Failure to vindicate speech principles may appear abstract.
Where exposure is asymmetrical, caution becomes default.
Documented Precautionary Behaviour
Organisations such as the Free Speech Union have highlighted instances in which venues cancelled or refused bookings following complaints about controversial subject matter.¹⁴ These cases have not necessarily resulted in tribunal findings of unlawful harassment. They demonstrate precautionary exclusion driven by perceived risk.
Venues and institutions are not courts. They do not parse section 26 jurisprudence before making booking decisions. They manage exposure. If a topic is controversial and the legal duty requires proof of “all reasonable steps,”¹ risk-averse avoidance becomes commercially rational.
Thus the chilling effect arises not from statutory prohibition, but from structural incentive.
Dignity, Truth and the Christian Responsibility
At its core, this is not merely a compliance question. It concerns the relationship between dignity and truth.
Christian teaching affirms the inviolable dignity of every human person. It equally affirms that truth is objective and cannot be reduced to subjective perception. A society that protects dignity by shrinking the space for reasoned moral disagreement risks confusing disagreement with hostility.
Many of the issues most likely to generate allegations of “hostile environment” are precisely those on which Christian anthropology diverges from prevailing cultural assumptions: the nature of sex, the permanence of marriage, the complementarity of the sexes, the moral limits of sexual expression.
These are not marginal debates. They are foundational.
If institutions increasingly treat discussion of such matters as compliance risks, the practical spaces for catechesis, apologetics and moral formation contract — not by decree, but by managerial caution.
The right to proclaim truth remains intact in law. The willingness of venues to host that proclamation may quietly diminish.
Protection and Proportion
The aim of combating harassment is legitimate and necessary. The question is proportionality: whether anticipatory responsibility for spontaneous third-party speech corresponds to employers’ realistic capacity to control it without incentivising over-correction.
When legal exposure rests with the venue rather than the speaker, social discipline costs shift from individual actor to institutional intermediary.¹ Rational prudence encourages restriction at the margins.
Over time, such prudence may produce a quieter, more cautious public square — one in which controversial but lawful moral discourse finds fewer willing hosts.
The Employment Rights Act 2025 does not criminalise Christian teaching. It does not outlaw gender-critical belief. It does not redefine harassment. But by expanding preventative duties within an evaluative framework and extending litigation exposure,¹⁰ it reshapes incentives across the institutions through which ideas are tested and truth is debated.
The danger is not overt censorship. It is incremental narrowing — fewer bookings, fewer invitations, fewer contested conversations.
A society committed to both dignity and truth must ensure that one is not preserved at the silent expense of the other.
- Employment Rights Act 2025, provisions introducing proactive third-party harassment duty.
- Equality Act 2010, s.26(1).
- Equality Act 2010, s.4.
- Equality Act 2010, s.26(4).
- Lee v Ashers Baking Company Ltd [2018] UKSC 49.
- Forstater v CGD Europe [2021] UKEAT 0105_20_1006.
- Human Rights Act 1998, Sch. 1, Art. 10 ECHR.
- Enterprise and Regulatory Reform Act 2013, s.65.
- Employment Rights Act 2025, amendments extending employment tribunal limitation periods.
- UK Government, Employment Rights Act 2025: Impact Assessment and Economic Analysis.
- Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237).
- Higher Education (Freedom of Speech) Act 2023.
- Free Speech Union, published case summaries concerning venue cancellations.
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