Promises Without Proof: Why the Employment Rights Bill Rests on Anecdotes, Not Analysis
THE RATIONALS
In the grand theatre of British politics, where manifestos are scripted with the flair of a West End production, Labour’s Employment Rights Bill has been billed as the “biggest upgrade to rights at work for a generation.” A noble endeavour, one might think, aimed at banishing the spectres of zero-hours insecurity and fire-and-rehire chicanery from the workplace.
Yet, as the bill concludes its hard-fought parliamentary odyssey, with Royal Assent on 18 December 2025, its once-bold unfair dismissal provisions diluted from day-one protections to a six-month probationary sop, a subtler scandal lurks in the wings.
Clause 20, that seemingly innocuous measure reintroducing employer liability for third-party harassment, emerges not as a shield for the vulnerable but as a monument to regulatory recklessness. Not for its laudable intent—who could quarrel with safeguarding baristas from leering patrons or nurses from abusive relatives?—but because it teeters on a foundation as precarious as a Jenga tower in a Whitehall breeze.
What if the bill’s evidential base is as sturdy as Gordon Brown’s infamous pension raid, a policy that promised security but delivered decades of shortfall? The under-reported crux of the matter, entombed in the dry tomes of regulatory oversight, is this, the government’s rationale for Clause 20 is perforated with evidential voids.
The Regulatory Policy Committee (RPC), that vigilant sentinel against bureaucratic overreach, delivered a withering verdict in November 2024, branding the bill’s impact assessment (IA) as “not fit for purpose”—a red rating, the committee’s harshest censure. And Clause 20? Singled out for particular scorn, rated red across the board, rationale for intervention, identification of options, and justification for the preferred path forward. In the RPC’s unflinching prose, the assessment “does not provide sufficient information on the prevalence of third-party harassment and its impact,” a damning indictment that exposes the clause as policy by presumption rather than proof.
To grasp the gravity, one must delve into the clause’s mechanics. Clause 20 amends Section 40 of the Equality Act 2010, thrusting upon employers the duty to take “all reasonable steps” to thwart harassment by outsiders, customers, suppliers, even passers-by, across all protected characteristics, race, religion, disability, sexual orientation, and beyond.
Verbal barbs, visual affronts, physical intrusions, all fall under its purview. Fail to prevent a single incident, and tribunals beckon, with uncapped compensation for the aggrieved and a potential 25% uplift for sexual harassment breaches. It’s an expansion from the Worker Protection (Amendment of Equality Act 2010) Act 2023, which targeted only sexual misconduct, now broadened to encompass the full spectrum of Equality Act safeguards.
On the surface, this seems a progressive stride, aligning with Labour’s manifesto pledge to foster safer workplaces by “protecting workers from harassment and strengthening preventative duties.” But peel back the veneer, and the evidential scaffolding crumbles. The 2020 Government Equalities Office survey offers robust data on sexual harassment, finding that 29% of employed adults experienced it in the workplace, spiking to 42% among those aged 16-24, but for other forms? A yawning chasm. Racial slurs in retail queues? Religious taunts in hospital wards? Disability-based derision in delivery vans? Absent, it seems, lost in the ether of ministerial optimism.
The Equality and Human Rights Commission (EHRC), in its March 2025 briefing, amplified the call for scrutiny, urging an examination of overlaps with existing statutes like the Protection from Harassment Act 1997 and emphasizing that “the government should provide evidence that current protections are insufficient before extending liability.” Why reinvent the wheel when the old one might suffice? The government’s response, a deafening silence, pressing ahead with implementation slated for October 2026.
This data dearth isn’t mere pedantry, it’s a recipe for regulatory chaos. Without quantifying the problem, how can one calibrate the cure? The RPC skewers the IA for skimping on non-regulatory alternatives, noting only a cursory nod to the discarded “three-strikes” rule from the 2013 Equality Act provisions, repealed back then for imposing undue burdens on businesses.
“The IA needs to provide evidence from business and stakeholders on these risks,” the committee insists. “The IA must address the costs to businesses of taking steps required to prevent the harassment.” Indeed, the clause’s vagueness invites overreach, what constitutes “all reasonable steps”? Risk assessments, staff training, incident logs, supplier contract clauses, public signage such as ”Harassment of staff will not be tolerated”? For small and medium-sized enterprises (SMEs), this translates to a compliance quagmire, with the RPC flagging insufficient justification for why no disproportionate impacts on these plucky outfits are anticipated.
SMEs, that engine of British ingenuity employing 60% of the private sector workforce across 5.5 million firms, stand to bear the brunt. The IA blithely asserts no undue strain yet the RPC demands elaboration, why expand exposure for these minnows to the Employment Tribunal system?
Projections paint a grim picture, an Equivalent Annual Net Direct Cost to Business (EANDCB) of £0.34 million for familiarisation and action plans alone, with per-case tribunal defences clocking in at £6,905, encompassing director time (£31.74/hour), HR input (£34.61/hour), and legal fees averaging £5,180. For sexual harassment incidents, costs swell to £10,000-£15,000 apiece, excluding managerial headaches.
In high-risk arenas, GPs grappling with mental health patients or A&E doctors contending with inebriated aggressors, the RPC urges deeper analysis, “The IA should address how the proposal would relate to high-risk areas, such as GPs dealing with mental health patients or doctors in A&E with patients under the influence of alcohol.” Yet, the assessment skims over these, leaving SMEs to navigate a minefield of potential litigation without a map.
Picture the corner shopkeeper, facing elevated closure rates post-pandemic. Now, imagine them budgeting for £6,905 per tribunal case amid a landscape where third-party harassment claims were historically rare, comprising a small fraction of total cases (estimated at less than 1% to 3% in pre-2013 reviews, per government and EHRC data).
Or the pub landlord, where banter once flowed as freely as bitter, potentially compelled to adopt stricter monitoring measures to avert liability risks from claims over overheard debates under Clause 20’s “all reasonable steps” requirement. These are not hypotheticals, they stem from the RPC’s call for stakeholder evidence on risks, which the IA largely ignores.
The hypocrisy drips like a leaky tap. Labour, once vociferous critics of Tory regulatory excess, now champions a clause that echoes the very pitfalls they decried. Recall their 2024 opposition to Tory free speech laws for fearing “frivolous lawsuits”—now mirrored in Clause 20’s risks. It’s as if Starmer’s team raided the Blair playbook but forgot the evidence chapter.
The JCHR and EHRC highlight clashes with European Convention on Human Rights Articles 8 (privacy), 9 (thought, conscience, religion), and 10 (expression), fretting over “excessive limitations on debate.” Baroness Noakes, in the Lords’ forensic dissections, evoked a dystopian vista, employers as “banter bouncers,” patrolling pubs and cafes to quash contentious chit-chat lest a customer’s Brexit moan or gender debate triggers a tribunal. “The IA would benefit from discussing the likely effectiveness of the reporting, drawing upon gender pay gap data reporting evidence,” the RPC adds, underscoring the bill’s broader monitoring woes, rated “weak” in 12 of its assessments.
This evidential myopia extends far beyond Clause 20, tainting the bill’s grander ambitions and casting doubt on its overall robustness. The RPC’s red rating, for instance, deems eight individual impact assessments (IAs) unfit for purpose, while critiquing weak regulatory scorecards in ten key areas, particularly for their inadequate justification of business impacts and pass-through effects on wider society. What about the broader welfare benefits of curbing harassment? As the IA concedes on page 12, they are “complex and difficult to quantify and therefore monetise,” prompting the RPC to recommend downgrading the optimistic welfare rating to “uncertain” to reflect the unknowns.
Monitoring and evaluation fare no better, while generic plans are outlined, specifics, such as post-implementation review questions or concrete metrics for success, remain threadbare, leaving little assurance of accountability. Even the IA’s scorecard ratings, such as “neutral” for business impacts, draw sharp fire from the committee, which demands a shift to “uncertain” wherever risks loom unaddressed. And for the third-party provisions specifically, the glaring absence of stakeholder evidence on costs and free speech perils only heightens the sense of a policy rushed into the spotlight without a solid script.
Historical parallels only amplify the folly of rushing reforms without robust evidence, revealing a pattern of good intentions derailed by practical pitfalls. Take the 2013 repeal of similar third-party harassment protections under the Equality Act, it was scrapped precisely because it proved burdensome and disproportionate, acting as a magnet for abuse with such low uptake that only around 3% of claims involved third parties, according to EHRC historical data, leading to undue strain on businesses without meaningful impact.
Contrast this with successful international models like Ireland’s day-one unfair dismissal rights since 1993 or New Zealand’s since 2000, which have avoided any hiring blight while maintaining unemployment rates competitive or lower than the UK’s (Ireland at 5% vs. the UK’s 5.1% a four year high)—yet the UK blithely ignores these proven benchmarks in crafting Clause 20.
Even Australia’s post-2023 labour reforms offer a lesson, contributing to GDP growth 0.4 percentage points above forecast without the same evidential shortcomings, as detailed in the Resolution Foundation’s 2025 analysis. Instead, Labour opts for bold assertion over careful calibration, barreling toward 2026 implementation amid consultations that often smack of mere box-ticking rather than genuine scrutiny.
The media’s blind spot only compounds the issue, amplifying a narrative that prioritizes drama over depth. While the CBI’s grumbles about “union power grabs” in access reforms and the TUC’s ecstatic praise for zero-hours bans dominate front-page headlines, the RPC’s scathing critique, its “red” rating on the bill’s evidential flaws, languishes in obscure footnotes or specialist blogs.
On social media, the Free Speech Union stirs passions with warnings of a “chilling effect,” transforming bustling workplaces into sterile echo chambers, yet few delve into the underlying data drought that’s at the heart of the problem. This under-reporting fosters a subtle propaganda of inevitability, portraying the bill as a transformative elixir for workers rather than the bitter draught of overreach it risks becoming.
Yet, as Downing Street vows to bulldoze through the Lords’ amendments, potentially invoking the Parliament Act to override unelected peers, the evidence vacuum threatens tangible real-world repercussions, accelerating pub closures that erode community hubs, shuttering corner shops vital to local economies, and straitjacketing public discourse in fear of tribunal traps.
This glaring oversight serves as a cautionary saga in an era of regulatory overreach, echoing the Thatcher-era battles against union excesses that once restored economic vitality. Labour promised evidence-led governance, what we’re witnessing is gesture politics, where the curtain rises on reform sans script.
Clause 20’s data gaps aren’t anomalies, they’re symptomatic of a bill built on sand, eroding under scrutiny. As the RPC recommends, fortify the rationale, justify SME burdens, monitor risks. Without it, this “upgrade” may downgrade the economy, one unproven clause at a time. In an age of post-truth, shouldn’t policy cling to facts like a life raft? Labour’s oversight suggests otherwise, leaving businesses, and free speech, adrift in uncertainty, much like the nation after too many well-meaning but ill-conceived interventions.
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This article (Built on Sand: Labour’s Evidence-Free Rights Revolution) was created and published by The Rationals and is republished here under “Fair Use”
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