Tuesday 10th December 2024
(1 month ago)
Public Bill CommitteesEmployment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 10 December 2024 - (10 Dec 2024)
The Committee divided: - Ayes: 4 / Noes: 14 - Question accordingly negatived.
Michael Wheeler
As I said, I listened closely to the points that Opposition Members made. Like my hon. Friend the Member for Gloucester, I will allow the Minister to come back on the specifics of impact assessments. The point I am trying to make is that we are all looking at the same Bill and the same information. We might desire more information at this point, but we are exercising our judgment. Regardless of the specifics of any impact assessment, I think it is patently obvious that it is a disproportionate response to the concerns raised by Opposition Members to exclude entire sectors from the protections that we are discussing.
On hospitality, we heard in oral evidence from the trade union Unite—of which I am not a member—that it had surveyed its hospitality workers and found that 56% of them had considered leaving the sector entirely as a result of the sexual harassment they were experiencing. We have heard throughout the debate about the desire to support businesses. We heard from UKHospitality about struggles with retention and how measures in the Bill, outside of this one, will aid with that. I hope we can all agree that, beyond edge cases that might raise concerns, the significant protections for workers that we are discussing would be not only good for those workers, but fundamentally good for business.
The Minister for Equalities (Dame Nia Griffith)
We have had a full and thorough debate, and I thank my hon. Friends—in particular my learned hon. Friends the Members for High Peak and for Gloucester—for making many valuable arguments, and everybody for contributing their personal experiences.
I remind the Committee that clause 15 requires employers to take all reasonable steps to prevent sexual harassment of their employees. Including “all” emphasises the thorough approach that employers must take; at the same time, the requirement remains limited to steps that are “reasonable”. The concept of “all reasonable steps” has the advantage of being well established and familiar to employers and employment tribunals. That is a really important point, because the clause clarifies and makes things easier and more straightforward, rather than complicated and burdensome, which is the implication of some of the amendments.
I thank the hon. Member for Dundee Central for speaking to new clauses 39 and 40 tabled by the right hon. Member for Dwyfor Meirionnydd. I pay tribute to the right hon. Lady for her work on violence against women and on stalking, and indeed to the work of her predecessor on stalking. I reassure the hon. Gentleman and the right hon. Lady that the Government entirely support the importance of ensuring that workers, including women and girls, are protected from workplace violence and harassment. There is already in place a strong and appropriate regulatory regime that provides protection to workers from violence and harassment. If the hon. Gentleman so desires, I will ask the Health and Safety Executive to write to him on that point.
Dame Nia Griffith
I will ensure that that happens.
The hon. Member for Mid Buckinghamshire questioned the necessity of this new legislation, so let me explain again. Often, harassment legislation, including the criminal law, allows an individual to take legal action against a perpetrator. However, that does not go far enough in tackling the wider issues and root causes. The burden of holding perpetrators to account and driving change is too great to be shouldered purely by employees who have experienced harassment. This measure therefore sends a clear signal to all employers that they must take all reasonable steps to prevent sexual harassment.
I think the hon. Member is also concerned that the clauses that we are discussing risk being unworkable or burdensome. It is important to remember that they simply require employers to do what is reasonable for their specific circumstances. That means that employers will not be penalised for failing to take unworkable or impractical steps. The clauses will not require employers to foresee the wholly unforeseeable or to police all customers’ private conversations. On one hand, the hon. Member acknowledges that good businesses already accept the need to take all reasonable steps to prevent sexual harassment, but on the other, he wants to make exceptions for a large number of businesses.
Greg Smith
I would be very happy to discuss with the Minister and her colleagues in Government the specific points I made about sectors such as higher education and concerns about the no-platforming of perfectly moderate speakers such as Tony Blair. Would she be willing to engage in that dialogue on safeguards in higher education around no-platforming, so that free speech can be protected?
Dame Nia Griffith
Free speech is absolutely a cornerstone of British values, but I remind the hon. Member that harassment is not free speech. They are two different things. The Bill concerns employer liability for workplace harassment, which is a serious issue, not to be underplayed. As with all cases of harassment under the Equality Act 2010, courts and tribunals will continue to be required to balance rights on the facts of a particular case, including the right to freedom of expression. Harassment is a serious matter that involves being subjected to unwanted conduct of various types that, as set out in the Equality Act,
“has the purpose or effect of violating”
the employee’s
“dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment”
for the employee. Those who seek to harass people at work will not be tolerated.
The hon. Member raised a number of potential scenarios relating to potentially offensive or upsetting speech. It is important to note that in employment tribunal claims for harassment, if certain conduct has a humiliating or degrading effect on the recipient but that was not its intended purpose, the tribunal must consider whether it was reasonable for the conduct to have had that effect. It is not a purely subjective test based on the view of the recipient. The reasonableness and the facts of the individual situation must be considered. On that note, I ask the Committee to accept the clauses unamended.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16
Harassment by third parties
Sarah Gibson
It is a pleasure to serve under your chairmanship, Mr Stringer. Before I make my case, I must make a small correction: the reference to section 14K in the text of amendment 163 should be to section 43K. My apologies for the error.
The Liberal Democrats tabled amendment 163 because although we strongly welcome the Bill’s proposals on whistleblowing, we do not feel that it goes far enough to support all workers: it is not extended to additional workers. We feel that whistleblowing protections should be extended to all those in the workplace who may see wrongdoing and may suffer for raising public interests and concerns. After our long debate about harassment, we must all agree that harassment can often be brought to light only by whistleblowers, so this part of the legislation is incredibly important. As the definition of “worker” in section 43K of the Employment Rights Act 1996 is already slightly different for whistleblowers than for other areas of employment law, there is a sound public policy reason to extend it even further.
In our diverse and complex labour market, many people who wish to blow the whistle do not necessarily qualify as a worker and are therefore not protected either by the existing legislation or under the Bill. The Secretary of State already has the power to make these changes through secondary legislation, but until the Government act on that, we are pushing for Parliament to extend protections to workers such as contractors.
In the modern economy, the boundaries between a self-employed contractor and a worker have never been more blurred. Many people classified as self-employed workers are inside a company, yet do not enjoy whistleblowing rights. That is true in my constituency of Chippenham, where a large number of people working in the care industry are technically subcontracted to the employer for whom they are working. In a large part of Corsham, many people work for the Government in one form or another, through the military or Ministry of Defence, but they are often either self-employed or subcontracted and therefore not entitled to these protections.
This issue is part of a wider problem with our modern economy, particularly the gig economy. It is welcome that the Government have made fighting the insecurities created by bogus self-employment a core plank of their employment reforms, but adopting this amendment would immediately plug the gap in workplace rights and protections for those who are self-employed.
I want to highlight a few cases. If the sub-postmasters, who were effectively contractors, had been afforded whistleblower rights, they might have been able to raise their concerns about the Horizon IT system much faster, and some of the issues would have been resolved faster.
Non-executives and trustees are subject to duties and liabilities under laws such as the Companies Act 2006 and the Trustee Act 2000, but they are not covered by whistleblower legal protections. Not only is blowing the whistle without protection a risk to someone’s employment, but for trustees of charities it could cause reputational damage, yet the law on that is currently unclear.
I do not need to remind Labour Members that the role of trade unions in the workplace is recognised in the Bill. A whistleblower is likely to go to their trade union representative for advice on whistleblowing, but if I have understood correctly, when representatives raise that concern to the employer on behalf of a colleague, there is currently no protection. The amendment would be an important extension to the clause.
If someone is rejected for a job because they blew the whistle in a previous role, they are unlikely to have a remedy in an employment tribunal against a prospective employer for the loss of that job opportunity. That puts them at a significant disadvantage. It leads to whistleblowers being blacklisted and unable to work in the sector in which they have raised concerns. The law is inconsistent; job applicants must not be discriminated against under equality law, and job applicants in the NHS do have whistleblowing protections.
The amendment would ensure that job applicants receive the whistleblowing protections that they deserve, and that extend whistleblowing rights to people working in various other forms who are not strictly considered to be workers. I ask the Committee to support our amendment.
The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)
It is a pleasure to see you in the Chair, Mr Stringer. As always, I draw the Committee’s attention to my entry in the Register of Members’ Financial Interests and my membership of the GMB and Unite trade unions.
I thank the hon. Member for Chippenham for raising these important issues, which we need to explore. She is coming from a good place. We all know that whistleblowers play an important role in shining a light on wrongdoing. The fear, and often the reality, of retaliation is a barrier to people coming forward with concerns.
Before I turn to the substance of amendment 163, I will recap the existing protections for whistleblowers. Workers have the right not to be subject to detriment on the grounds of making a protected disclosure and not to be dismissed for making a protected disclosure: that would be treated as an automatically unfair reason for dismissal. These are day one rights for workers and employees who have recourse to an employment tribunal. The standard employment law definition of “worker” has been extended in recent years to whistleblowing protections. It includes a range of employment relationships, such as agency workers, individuals undertaking training or work experience, certain self-employed staff in the NHS, police officers and student nurses and midwives.
Amendment 163, as the hon. Lady says, would extend the scope of whistleblowing protections to a huge range of other groups, including the self-employed, contractors, office holders including members of the judiciary, non-executive directors, trustees—including personal trustees—and trade union representatives and job applicants, as well as those who acquire information during a recruitment process.
I can see the hon. Lady’s intentions and what she is trying to achieve. However, there are questions that the amendment does not address, particularly given how our current employment law framework is structured, because a lot of the people it covers are not in an employment relationship or a worker relationship. The remedies are based on detrimental treatment and on dismissal, but a lot of those to whom she seeks to extend protection are people who by definition cannot be dismissed, because they are not employees or workers.
It is quite a job to understand exactly where to take the issue of people who acquire information during a recruitment process, which is the final limb of the amendment, paragraph (cg). That is potentially extremely broad in application. In legislation like this, it would be difficult to pin down exactly who it would apply to. Would it apply to someone casually undertaking a job search on the internet? Where do we draw the line?
On the point about job applicants, I take the point that blowing the whistle can have a huge impact on a person’s career prospects. I have represented many people who have found that to be an issue, and there are already blacklisting laws for certain types of protection. However, the tribunal can award compensation and take into account the difficulty that an individual might have in finding suitable employment at a similar level as a result of having blown the whistle. There is a wider question about how we treat people who blow the whistle, which is not necessarily going to be resolved by the amendment.
I agree that we should protect those who speak up and that we should ensure that our legal framework takes account of modern working relationships. I recognise that, particularly for trade unions, there is a benefit to having these groups within scope, and there are issues here that I think bear further scrutiny. Because of the plethora of unintended consequences and knock-on effects, some of which I have touched on, we cannot accept the amendment as drafted, but I assure the hon. Lady that I intend to meet Protect next month to discuss the issues on which it is campaigning. We are aware of the long-overdue requirement to look at whistleblowing law. The previous Government undertook a small exercise and we need to understand its findings, but we will be taking into account some of the issues that the hon. Lady has raised.
We cannot pretend that such an amendment would not bring very large numbers of additional people into scope, so we would want to work with stakeholders to understand what that would mean for them. It is also possible to imagine people becoming professional whistleblowers by having something that they could rely on in perpetuity; again, we have to balance that against the need to ensure that people are properly protected. I am happy to work with colleagues across the House to ensure that if we introduce any legislation in this area, we get it right and recognise modern relationships. The hon. Lady is also right to refer to worker status: we are keen to look at that in our “Next Steps” document, because we know that a whole range of issues arise.
Sarah Gibson
We are happy not to press either amendment 163 or new clause 41, but I ask the Minister to meet us before Report so that we can introduce some, if not all, of the measures in them, and particularly those in amendment 163. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Dame Nia Griffith
Clause 18 will strengthen the protections for whistleblowers by making it explicit that sexual harassment can be the basis for a protected whistleblowing disclosure. It will do so by amending part 4A of the Employment Rights Act 1996, adding sexual harassment to the list of relevant failures about which a worker can blow the whistle.
For context, to qualify for whistleblowing protection, a worker needs to have a reasonable belief that their disclosure tends to show one of the relevant failures and that the disclosure is in the public interest. A worker who blows the whistle by making a protected disclosure has the right not to suffer a detriment or, if they are an employee, not to be unfairly dismissed.
This measure will provide welcome clarity that sexual harassment can form the subject of a qualifying disclosure. This is because, as a result of the measure, a worker will not need to identify an existing legal obligation, criminal offence or breach of health and safety in order to make a qualifying disclosure about sexual harassment.
We anticipate that the measure will have wider benefits, including enabling more workers to use whistleblowing routes to speak up about sexual harassment, and sending a clear signal to employers that workers who make disclosures must be treated fairly. Workers will have legal recourse if their employer subjects them to detriment for speaking up.
This is one of the steps that we are taking to tackle sexual harassment at work. According to data from the Office for National Statistics, more than a quarter of those who have experienced sexual harassment in England and Wales said they had experienced it at their place of work. That must change. I commend the clause to the Committee.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Clause 19
Right not to be unfairly dismissed: removal of qualifying period, etc
Question proposed, That the clause stand part of the Bill.
Justin Madders
I will not speak for long on clause 19, because it is a fairly straightforward clause and there are more detailed clauses and amendments that may generate further debate. Clause 19 introduces schedule 2, which will repeal section 108 of the Employment Rights Act 1996, thereby removing the two-year qualifying period for protection against unfair dismissal.
An estimated 9 million employees have been working for their employer for less than two years and therefore have very limited protection against unfair dismissal. By removing the qualifying period, the Government will make basic protection against unfair dismissal a day one right for all employees, ensuring a baseline of security and predictability. It is about tackling insecurity. Unless there are automatically unfair grounds, an employer can lawfully sack a worker just by giving them their statutory or contractual notice pay and telling them not to come back to work. There is no entitlement to a fair process, nor even a right to a written statement explaining why they have been sacked.
Think about what you can do with two years in your life, Mr Stringer—well, maybe we should not think too much about it. Someone can make an awful lot of commitments, including financial commitments. They can get married, buy a house, start a family and take out loans of all descriptions, but they have no protection at work and nothing to stop them being arbitrarily dismissed in that two-year period. We think that that is wrong: it creates a great deal of insecurity in the workplace, and it has to change.
Our changes will not prevent fair dismissal. We will ensure that businesses can hire with confidence. We will ensure that employers can operate contractual probation periods, which are separate from the new statutory probationary periods. During the statutory probationary periods, employers will have a lighter-touch standard to meet when they need to dismiss an employee who is not suitable for the job.
Our changes will ensure that newly hired workers are not arbitrarily dismissed. We believe that that will help to drive up standards in the workplace. It will ensure that there is greater fairness and greater understanding between employees and businesses. It will drive up standards, quality and security—all things that we believe will improve our economy. We do not intend to bring in these measures in until autumn 2026 at the earliest. I commend the clause to the Committee.
Greg Smith
It is a pleasure to serve under your chairmanship, Mr Stringer. I accept the Minister’s point that clause 19 essentially just introduces schedule 2. Several amendments in my name and in the name of my hon. Friends will explore schedule 2 in detail over the coming days and potentially even weeks.
However, as we discuss clause 19, I think it is important gently to challenge what is actually quite a big leap, from two years down to day one. It is incumbent on the Government to come up with a rationale and a reason for such a considerable change. This is not a taper or a gradual decrease from two years to a year or six months; we can have a debate about what the right number is.
It is clear that the Government wish to move down from two years, but what we heard in our public evidence sessions shows the very real risk that introducing these day one rights for all employees will mean that employers are reticent, are more risk-averse and do not hire as readily, freely or easily as we might want in order to create jobs in our economy. I remind the Minister what Jane Gratton of the British Chambers of Commerce said about her members:
“Members say that there would be a reduced hiring appetite were this legislation to come in, and that they would be less likely to recruit new employees due to the risk and difficulty, particularly under the day one rights”.––[Official Report, Employment Rights Public Bill Committee, 26 November 2024; c. 8, Q2.]
She went on to argue for a nine-month probationary period—a period to which it would potentially be feasible to reduce this timeframe.
Whenever a new law comes in and makes a significant change, be it to business, regulation or whatever sector, I gently ask the Minister to reflect on the time period. Is it really necessary to make such a giant leap in one go? Even if in years to come the Government get what they want in terms of day one rights, would it not be better to face this now, listen to industry, listen to the evidence that this very Committee heard a couple of weeks ago and be more measured, proportionate and risk-averse as to what these measures might end up doing to the overall jobs market in the United Kingdom of Great Britain and Northern Ireland? If the Government did that, it would help with some of the stark and staggering business confidence numbers in the economy at the moment. Businesses are worried about where the future lies, and real people out there looking for work are worried that jobs might not be as readily available after the Bill comes into effect.
Justin Madders
We seem to have lost a few colleagues during the votes; hopefully, they are coming back. It seems a while since they were made, but I will pick up on comments and questions of—[Interruption.]
Justin Madders
Let me sum up the debate. The shadow Minister asked some questions, and there were other contributions to the debate, which I hope to come on to. I think that the shadow Minister’s general position was that he accepted that there should be a reduction in the qualifying period. I am not entirely clear whether that was the case, but certainly his colleague, the hon. Member for Bridgwater, threw out a number of proposals. The question that the shadow Minister asked was, “Why day one?” I will come to that shortly, but I think the other main thrust of his argument was that we are not listening to businesses. Of course we are, and that is why we came up with the concept of a statutory probationary period.
For the information of the Committee, about 140 stakeholders have engaged with us about the Bill since we came into office in July. One of the many issues that have come up is the question of day one rights, and how we balance the risk for employers—giving them the confidence to hire but ensuring that we deliver our policy aim of giving people more certainty and security at work. That is where the statutory probationary period comes in. We believe that that will help businesses focus on their hiring practices, but it should also increase the dialogue between employer and employee in those early days of the employment relationship.
My hon. Friend the Member for Gloucester said that an employer can work out pretty quickly whether someone will be suitable for the workplace. At this point, I quote Professor Dominic Regan, an eminent professor of employment law, who used to quip somewhat tongue in cheek that he could decide whether he liked someone within 10 minutes of meeting them on a train. That was his way of arguing that the two-year time limit for unfair dismissal was set far too high. It is certainly a sentiment that I agree with, although we will not be going as far as to introduce a 10-minutes-on-a-train test.
We are seeking to give employees the security of knowing that they will not be arbitrarily dismissed in the early days of their employment, but to give employers the confidence to hire and the opportunity to use a light-touch process to deal with issues of performance and capability. We believe that will be a positive for employees. Research quoted in the impact assessment suggests that having a job is significant to physical health and personal relationships, as a determinant of one’s wellbeing. The quality of that job and how secure it is are clearly a key part of that.
The point made by my hon. Friend the Member for Birmingham Northfield, and by my hon. Friends the Members for High Peak and for Gloucester, about employees who get dismissed before the qualifying period sometimes looking for a protected characteristic to base a claim on is an interesting one. I do not think that is something that we can model, because we do not know exactly how many claims would have continued anyway, but it is a fair point that when people are dismissed before two years, without any discussion or explanation, they seek answers, and sometimes they might seek those answers by hanging their hat on a statutory peg that may not always fit the case. My hon. Friends all spoke eloquently about how that can be counterproductive not just for the businesses, but for the employees’ general wellbeing.
Business in the Community surveyed 4,000 employees, of whom 66% said that their mental health and wellbeing was affected by their personal job insecurity. In written evidence presented to the Committee, USDAW noted that
“Being dismissed on spurious…grounds, without a fair investigation can have devastating consequences for an employee”
in terms of morale, confidence and living standards. Having worked for employers that had quite a gung-ho approach to employment rights, I welcomed the security of a qualifying period for unfair dismissal. Before that, it really did feel that you were one wrong conversation away from seeing your job go.
Of course, there is significant evidence to suggest that there are advantages for the wider economy. I think there is an acceptance that job insecurity can have a cooling effect on job mobility. The Resolution Foundation noted that the job mobility rate in 2019 was 25% lower than in 2000. As my hon. Friend the Member for Birmingham Northfield said, there is an international context to this: the UK is the fifth least regulated of the 38 OECD countries in terms of the dismissal of individual workers. We should look to correct that, and the Bill will go a long way towards doing so.
The shadow Minister asked about the risk to jobs. The impact assessment states:
“There is limited evidence to suggest that protecting employees from unfair dismissal is associated with lower employment rates.”
Evidence from our OECD counterparts across Europe supports that. The Resolution Foundation gave evidence to the effect that the measure is unlikely to have an impact on employment rates. Professor Deakin’s historical context was important. He said that, over the sweep of history in the past 50 years, increased employment protections have not led to increased unemployment. Of course, all Members will be aware of the messages of doom that we heard during the national minimum wage debate about what implementing that measure would mean for employment rates.
History demonstrates that there is nothing to fear in this legislation, and nothing to fear in giving people greater job security from day one. By providing for a statutory probationary period, we are getting the balance right between security at work and giving employers the opportunity to take a chance on new hires. I commend the clause to the Committee.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Anna McMorrin.)