Tuesday 3rd June 2025
(3 days, 7 hours ago)
Lords ChamberEmployment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Watch Debate Amendment Paper: HL Bill 81-VI(a) Amendments for Committee (Supplementary to the Sixth Marshalled List) - (3 Jun 2025)
Lord Davies of Brixton (Lab)
I thank my noble friend for his powerful and clear speech; he has said it all. I just want to add that this issue has arisen from the P&O scandal that took place three years ago. The maritime unions are particularly concerned about this, and I hope that my noble friend the Minister will be able to provide some comfort for the arguments that have been presented. The issue of pre-emptive injunctive relief for seafarers and other workers is a crucial issue and it is possible that we will need to return to it on Report.
Lord Sharpe of Epsom (Con)
My Lords, I appreciate the intent behind Amendment 143. After all, we are all familiar with the high-profile cases, such as P&O Ferries, to which the noble Lord, Lord Hendy, referred in his introduction.
I cannot pretend that I was au fait with the case details that the noble Lord explained, but we have some concerns about the practical and legal consequences of what is being proposed here. It seems to us that the amendment would allow employment tribunals to declare dismissals void and as having no effect; therefore, in effect, reinstating employees regardless of circumstances.
That is a major departure from the current legal framework, where the remedy for a breach is compensation, not nullification. That obviously raises serious questions. What happens if a dismissal is declared void months later? Is the employee reinstated, and are they entitled to back pay? What if the role no longer exists or has been filled? For many businesses and many workers, that would create uncertainty and not protection.
There is also the issue of enforcement. Giving tribunal decisions the force of the High Court, and allowing contempt proceedings for breach, risks confusing two fundamentally different judicial systems. Tribunals are meant to be accessible and the High Court is not.
I also question whether this change would meaningfully deter bad-faith employers. Those who already factor in the cost of breaking the law may simply budget for this risk too. Meanwhile, small and medium-sized employers acting in good faith could face disproportionate legal exposure for administrative or technical errors. I look forward to hearing the Minister’s response.
Lord Hunt of Wirral (Con)
My Lords, I am very grateful to the noble Lord, Lord Davies of Brixton, for so clearly setting out the case for a range of amendments. As he made clear, the matters under discussion go to the heart of how we uphold standards for those who work at sea, an essential part of our economy and infrastructure. Of course, we are all well aware of the extent to which the events surrounding P&O Ferries in 2022 were a stark reminder of the vulnerabilities that are faced by seafarers operating in and around UK waters. I am very grateful to the noble Baroness, Lady Whitaker, for reminding us of some pretty stark situations that are faced by people who work in this environment.
I was very pleased and proud when the Conservative Government took clear and concrete steps to improve protections, most notably through the Seafarers Wages Act 2023, the introduction of the voluntary seafarers’ charter and a broader nine-point plan aimed at promoting fairer treatment and higher standards across the sector. These reforms represent a record of action that reflects the seriousness with which we take the obligations owed to maritime workers and our determination that what happened—that unacceptable practice that we all saw and were so concerned about—must never happen again.
Today’s amendments reflect continued concern for the welfare and rights of seafarers. They raise, though, a number of detailed questions about scope, enforcement and the role of harbour authorities. I am pleased to see the noble Lord, Lord Hendy of Richmond Hill, here to reply to this debate, because we want to hear from him how the Government see these provisions fitting alongside the reforms already undertaken. We await with bated breath his reply to this important debate.
The Minister of State, Department for Transport (Lord Hendy of Richmond Hill) (Lab)
My Lords, I will first speak to government Amendments 200B and 200C. These amendments relate to Clause 54, which amends the Merchant Shipping Act 1995 to provide powers to make regulations giving effect to international agreements relating to maritime employment. Amendment 200B provides that such regulations cannot be used to bring into force an international agreement, or an amendment to an international agreement which requires ratification, before the UK has ratified it. By implication, the effect of this amendment is that such regulations can be made ahead of ratification of the agreement or amendment. For the UK to ratify an international agreement, it is usual for any necessary implementing legislation to be passed or made in advance of ratification, so the amendment helps ensure that the UK can fulfil its international obligations. Amendment 200C is simply a consequential drafting amendment.
Amendments 143A and 143AA, tabled by my noble friend Lord Davies of Brixton, seek to amend the requirements of the collective redundancy notification provisions to apply to services calling at a port in Great Britain at least 52 times a year, rather than 120 times a year. We are, as my noble friend and the noble Lord, Lord Hunt of Wirral, related, yet again dealing with the appalling events surrounding the P&O dispute in March 2022. As with the Seafarers’ Wages Act, the frequency requirement of this measure was designed to ensure that it applied to those services with a close enough connection to the United Kingdom to justify it. Any broadening of the scope would require further consideration of the impact of bringing further vessels into it. I will come on to the proposed amendments to the scope of the Seafarers’ Wages Act, but we do not accept the proposal to amend the scope of those measures. We will apply a consistent approach to the proposed changes to the scope of the collective redundancy requirements, which has the same frequency requirement. Any change would require stakeholder engagement and full consideration of the impacts on industry. However, having listened carefully to my noble friend Lord Davies of Brixton, we will agree to meet the trade unions, as he suggests, where a number of the issues that he has raised tonight can be further discussed, including the requirement for a summary of the Government’s position before Report.
Amendments 200AA, 200AB and 200AC, also tabled by my noble friend Lord Davies of Brixton, seek to apply the measures under the Seafarers’ Wages Act 2023 as amended by this Bill to weekly services rather than those calling 120 times a year as drafted. The existing minimum frequency requirement for the new remuneration and safe working declarations is consistent with the requirements under the existing Seafarers’ Wages Act 2023, which was brought into force on 1 December 2024. It is important that this measure be limited to services with a close enough connection to the UK to justify intervention in their working practices; the current requirements in the Seafarers’ Wages Act and in the Act as amended in this Bill have been designed with this in mind. Extending the scope of this measure would require careful consideration of the international law implications of bringing into scope less frequent services to the UK, as well as the impacts on the market. With these considerations in mind, we think that the existing scope strikes the correct balance. It would also not be right to accept this amendment without undertaking a full public consultation, which cannot be done in the timescales required to make this change as part of the Bill.
Amendment 200AD and the consequential Amendments 200AE to 200AK would go beyond the existing powers in the Bill to make safe working and remuneration regulations. It would provide further powers to specify conditions relating to sick pay, holiday pay, pensions and other training, and to require harbour authorities to request the associated declarations from operators, following the approach taken by the Government in relation to the remuneration and safe working regulations.
Lord Watson of Invergowrie (Lab)
My Lords, I am pleased to speak in support of my noble friend Lady Warwick on an issue that, as far as I am aware, has not appeared anywhere else but is of some importance. There is growing unease in the higher education sector about the potential implications of Clause 30. Universities UK has said it is frustrated that its letters to both officials and Ministers—they would be the same thing, I imagine—remain unanswered. UUK is probably being a bit polite in saying that it is frustrated; I suggest that it is unacceptable for a letter from any UK-wide organisation not to receive a response. If nothing else, I hope my noble friend will be able to give an assurance in her reply that she will ensure that Universities UK receives a considered response to its very legitimate concerns.
As my noble friend said, the higher education sector is concerned at the potential impact of measures proposed in Clause 30, which relate to outsourcing, on current arrangements within the sector and on the viability of steps that universities have taken or are planning to take in order to stabilise their financial position. Many universities consider themselves as falling within the definition of contracting authorities and may therefore be inadvertently caught in this clause of the legislation.
As originally introduced, the public sector outsourcing provisions applied to contracting authorities in England only. However, Ministers introduced an amendment in Committee in another place, and provisions now apply to contracting authorities in England, Scotland and Wales. Again as my noble friend said, the major point on which clarification is essential is whether and in what circumstances universities will be considered to be contracting authorities for the purposes of this legislation.
There is also the question of whether the planned separate outsourcing rules for different UK nations will or even might create complex and prohibitive arrangements for universities. As an example, if an institution is working across the UK nations—a good example would be the Open University—that could mean it is subject to two or more sets of outsourcing rules, potentially providing a conflicting legislative framework for its operational practice. I hope my noble friend will be able to clarify how the Government envisage such separate outsourcing rules will operate, and that in doing so she will provide reassurance to many in the higher education sector who, as my noble friend Lady Warwick said, are very supportive of the Bill in general but fear that universities could become victims of unintended consequences.
Lord Sharpe of Epsom (Con)
My Lords, I thank both noble Lords for their contributions, and I thank the noble Baroness, Lady Warwick of Undercliffe, for her introduction to her Amendment 143B. We think it is important to recognise the unique position of higher education providers when considering worker protection in public sector outsourcing. Because universities and similar institutions operate outside the traditional public sector framework, they possess a level of autonomy that sets them apart from government bodies, so applying the same regulatory requirements to these institutions clearly risks imposing unnecessary burdens that could affect their ability to focus on their core missions of education and research.
The amendment seems to us to thoughtfully acknowledge that difference by excluding higher education providers from the scope of these specific worker protection provisions. Such an approach would allow the focus of these protections to remain on core public sector organisations, where procurement processes are more standardised and closely tied to government accountability. At the same time, it would respect the operational independence of universities.
The fair treatment of workers remains an essential principle across all sectors, including higher education. Encouraging good employment practices within universities should continue through other means, but the amendment recognises the practical realities faced by these institutions. I look forward to hearing the Minister’s answer.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, I thank my noble friend Lady Warwick for her thoughtful contribution to this debate on Amendment 143B. We fully recognise the need not to impose disproportionate burdens on smaller procuring organisations such as universities. However, it is important that we consider fairness and equality of treatment for all workers providing key outsourced services to higher education providers—for example, cleaning and catering services—so that they receive fair and equitable employment conditions comparable to both those transferred from the public sector and those working for local authorities or departments that provide the same services. As a result, there would need to be compelling arguments to exempt higher education providers.
Secondly, it is essential that we first consult with key stakeholders and seek their views before deciding on the ultimate content of the reinstated code and the extent to which certain public authorities, including higher education providers, are required to follow its provisions. I can assure my noble friend Lady Warwick that we will carefully consider the particular issues relating to higher education providers and the difficulties they might experience during this process. However, our view is that to carve out higher education providers completely on the face of this Bill at this stage would not be right.
My noble friend highlighted the particular financial challenges currently being experienced by universities. We are committed to creating a secure future for our world-leading universities so that they can deliver for students, taxpayers, workers and the economy. The Office for Students will continue dedicating significant resources to ensuring the sector’s financial sustainability. The DfE has appointed Professor Edward Peck as the substantive chair of the OfS, where he will play a key role in strengthening this commitment while also expanding opportunities in higher education. We have also made the tough decision to increase tuition fee limits in line with inflation. As a result, the maximum fee for a standard full-time undergraduate course in the 2025-26 academic year will increase by 3.1% from £9,250 to £9,535.
Finally, I stress that the code is being designed to be flexible so that it does not impose undue burdens. There are a range of options available here that could be pursued, for example by specifying to which bodies the code should apply or applying the code only to higher-value contracts, which could exempt low-value procurement activities such as those often carried out by educational establishments that may have fewer procurement resources. These are the sorts of issues that the consultation will examine in detail.
I am very conscious that my noble friends Lady Warwick and Lord Watson asked very specific questions. Given the lateness of the hour and the very specific nature of them, I think it would be helpful if we could write and put that on the record to provide, I hope, the reassurance that the higher education sector seeks. It is for that reason that I ask my noble friend to withdraw her amendment.
Baroness Warwick of Undercliffe (Lab)
My Lords, I thank my noble friend for her reply and her attempt to reassure me and other Members of the Committee. I am grateful to my noble friend Lord Watson of Invergowrie for his staunch support for what I am trying to do here. I also thank the noble Lord, Lord Sharpe of Epsom, for his support; it was thoughtfully put, and I appreciate it.
I understand that the Minister is seeking to reassure me that she is very aware of the need to support the future of our universities. I do not think she really addressed, though, the issues around the impact on the different nations and the way in which that could affect the competitive advantage of the universities and the way in which they are seeking to increase efficiencies. I hope that, in writing to me, she will also undertake to meet the higher education sector once it has digested the detail of her response—I appreciate that my questions are technical. I hope she will undertake to do that because I think that would be enormously helpful and the most reassuring thing that she could do. Having said that, I beg leave to withdraw my amendment.
Lord Hunt of Wirral (Con)
My Lords, I thank the noble Baroness, Lady Fox of Buckley, and my noble friends Lady Lawlor and Lord Jackson of Peterborough because they rightly question whether this clause is necessary to establish what we all agree should be the vital place for equality of opportunity.
It is vital in the workplace that merit should win the day, but there should also be equality of opportunity. Women and men should have equal opportunities, fair treatment and the freedom to thrive regardless of their background. So I hope all those who have spoken, including the noble Lords, Lord Watson of Invergowrie and Lord Palmer of Childs Hill, would agree that we all support equality of opportunity, not just in principle but in practice.
Therefore, it is right that every time there is another step, particularly when it creates more paperwork and more bureaucracy—as the noble Baroness, Lady Fox of Buckley, put it—it is important that we just question whether this is the right way to proceed, particularly, as my noble friend Lord Jackson of Peterborough pointed out, because this is really giving the Government power to do whatever they want to do whenever they wish to do it, by regulation. We do not know what the Government will do because they have not yet consulted on the power that we are about to give them. It is exactly what this House has always preached long and hard against. We should not give Henry VIII powers to the Government to do whatever they would like to do by statutory instrument.
I would have thought that my successor as chair of the Secondary Legislation Scrutiny Committee—the noble Lord, Lord Watson of Invergowrie—would know that more than anyone else. Giving the Government this power has to be justified. My noble friend Lady Fox of Buckley does not need me to defend her against the noble Lord, Lord Watson of Invergowrie, as he saw her move across the political spectrum, but she is right to question this in the way she did. As my noble friend Lady Lawlor put it, we are, in a way, promoting positive discrimination, which undermines achievement on merit.
I hope that the Minister will give very serious thought to explaining exactly what is proposed, rather than wait for the secondary legislation. Let us know, straightaway and in detail, what additional equality action plans are being proposed. We have to pause for a moment to worry about the serious and often unintended consequences that policies such as these can have, particularly for women on the margins of the labour market. The principle behind the measure is commendable —to close the gender gaps, to support women through challenges such as the menopause, and to shine a light on structural inequalities—but, in practice, these kinds of top-down mandates too often result in box-ticking compliance, statistical quotas and public relations targets, and never in real progress.
What gets measured drives what gets managed. When employers are judged by headline figures—gender pay gaps, representation in senior roles—there is an inevitable temptation for them to focus their efforts where the optics are best improved, on high-status, high-visibility roles. As a result, employers might feel pressured to hire or promote individuals with certain characteristics into elite positions just to improve those diversity statistics, rather than genuinely supporting a larger number of people, who are often the minority, who hold lower-paid, insecure or part-time roles and who would benefit most from meaningful reform.
Regardless of sex, ethnicity or sexual orientation, merit should always be the basis for the advancement of an individual. I worry that we risk a situation where the beneficiaries of an equality policy are disproportionately those who are already relatively privileged, while those in cleaning jobs, care work, warehouses, and food processing and service are pushed further to the margins. Even worse, if statistical appearances become the basis of legal or reputational risk, employers may become reluctant to hire minority women at all into lower-paying roles for fear of what the data might suggest. That is not progress; it is perverse.
I warmly applaud the fact that this debate is taking place. Equality is not achieved by engineering the statistics; it is achieved when every person, regardless of sex, class, race or role, has access to fair work, safe conditions, proper pay and genuine opportunity to get on in life. I ask colleagues to consider: will these equality action plans bring meaningful change for working-class young men, people from ethnic minorities and women on zero-hours contracts, or will they largely serve the HR departments of large organisations by helping to polish their diversity reports while little changes on the ground? We cannot effect equality by appearance; we must demand equality by substance.
Lord in Waiting/Government Whip (Lord Collins of Highbury) (Lab)
My Lords, I am grateful to the noble Baroness, Lady Fox, for initiating this probing debate on Clause 31. As the noble Lord, Lord Hunt, highlighted—I like to call him my noble brother after all these years of working together—it enables us to put forward a very strong case. One can always be concerned about Henry VIII powers and secondary legislation, especially when employers are not consulted and the objective is to undermine good industrial relations. I remind my noble brother about the debates we had on the strikes Bill, which was precisely about those issues of unintended consequences.
Ensuring that women can remain in and progress in work is crucial—vital—to economic growth, and yet the national gender pay gap remains at 13.1%. We know that women often face barriers in the workplace that impact their pay, progression and economic participation. Eight in 10 menopausal women say that their workplace has no basic support in place. This lack of support is a barrier and can lead to a significant loss of talent and, just as importantly, productivity.
This is not new. As a trade unionist, I, and my noble brother opposite, know full well—we have heard about all the legislation that has been brought in—that real progress has been effected in the workplace by supporting and amplifying that legislation and giving people the tools to ensure that that legislation has an impact. As a trade unionist, I have seen many initiatives that have delivered better facilities and ensured that women can remain active in the workplace.
I remember a campaign in the 70s and 80s about breast cancer. Many women would not even dare talk about it, but the trade union movement launched a campaign for workplace screening and opened up a debate, so that people could acknowledge the risks and address them, rather than live in isolation and fear. It is important that women are able to talk about the menopause openly and can address it. Breast cancer does not make women victims. We should all be focused on how we can deliver for women. That is really important, and there are many examples.
Since 2017, large employers have been required to publish gender pay gap data. The additional publication of an action plan is precisely to do what the noble Lord opposite has said. How do we see and assess the impact? The additional publication of an action plan has been encouraged, but it is voluntary. However, analysis in 2019 discovered that only half of employers reporting data were voluntarily producing a plan on how they can make improvements. What the noble Lord described is what has happened: they produce the data and do nothing. That is why this legislation is so important, and the next step for improvements for women in the workplace is to make that mandatory.
Of course, we recognise and applaud the best employers, which already recognise the value of supporting women to thrive and are already taking action—many noble Lords addressed that. Following their lead, large employers will be required to detail the actions they are taking to improve gender equality and support employees during the menopause. The intention is to motivate employers to take meaningful action, to break down the barriers and help all women to thrive.
Lord Sharpe of Epsom
“Use of positive action in the workplace(1) In this section—(a) “P” is a public sector worker who reasonably thinks that the application by P’s employer, in relation to P’s employment or a working practice, of sections 158 and 159 of the Equality Act 2010 has caused or risks causing detriment to P,(b) “R” is P’s public sector employee, and(c) P reasonably thinks that R is responsible for the detriment in subsection (1)(a).(2) A Minister of the Crown must by regulations make provision for—(a) forms through which P may anonymously question R on any matter relevant to subsection (1),(b) forms through which R may answer questions by P, and(c) such forms to be made publicly available.(3) Within six months of the passing of this Act and every three months thereafter, R must publish a report setting out―(a) the number of forms received under subsection (2), and(b) a summary of the nature of the complaints to which they relate.(4) A Minister of the Crown may by regulations require R to report on the use of sections 158 and 159 of the Equality Act 2010.(5) This section does not apply to activities undertaken by R under paragraph 1 of Schedule 9 of the Equality Act 2010.”Member's explanatory statement
This amendment introduces a mechanism for public sector employees who believe they have been disadvantaged by their employer’s use of positive action under sections 158 and 159 of the Equality Act 2010. It would require the Government to create a process allowing such employees to anonymously question their employer and requiring employers to respond.
Lord Sharpe of Epsom (Con)
My Lords, I rise to speak to Amendment 145 standing in my name and that of my noble friend Lord Hunt of Wirral. This amendment introduces a mechanism for public sector workers who reasonably believe that they have been subjected to detriment as a result of their employers’ use of positive action under Sections 158 and 159 of the Equality Act 2010. It does not seek to outlaw such action, nor does it obstruct efforts to promote fairness. Rather, it seeks to ensure that fairness extends to all employees, not only those whom the state or the employer happen to deem underrepresented.
We must confront the uncomfortable truth that some public bodies have begun to apply positive action in ways that no longer reflect the careful balance envisaged by Parliament when the Equality Act was passed. We have now entered territory where lawful positive action shades into unlawful positive discrimination —where the scales of justice have been not merely tipped but turned. For example, let us consider West Yorkshire Police, a force whose conduct in this area raises urgent and serious concerns. It has come to light through both media investigation and internal whistleblowers that recruitment processes have been operated in a manner which in practice delays, restricts or even excludes applications from white British candidates. Candidates from certain ethnic minority backgrounds were allowed to apply early and, in some cases, were mentored through the process by dedicated positive action teams. Meanwhile, white British applicants were told to wait until a general window opened, often for as little as 48 hours. This, we are assured, is not discrimination but rather the fair operation of the law. I do not agree. This is not the spirit nor, arguably, even the letter of the Equality Act. It is a distortion of the law, and it demands redress.
What makes this all the more troubling is that these actions are being taken not by private corporations but by the state, or at least by institutions that act in the name of the state and are funded by the public purse. The taxpayer in this case is being forced to subsidise policies that they might find discriminatory and from which they may be excluded. There seems to be something especially perverse, indeed, almost Orwellian, about that.
This is not merely an abstract concern. West Yorkshire Police, for example, reportedly spent over £1.4 million in recent years on equality, diversity and inclusion staff—more than any other force in the country. That is public money. It is money earned by ordinary citizens, some of whom now find themselves effectively barred from entry into public service not because they lack ability but because their ethnic background does not satisfy an internal diversity target. When questions are raised, when whistleblowers from within these forces speak up, what happens? We hear of them being silenced, reprimanded or warned not to interfere. We hear of secret job listings marked “hidden” in the system, visible only to certain candidates. We hear of candidates greeted with hugs and reassurances that their interviews are merely a formality. That is not recruitment, and it is not equality. It is institutional manipulation.
The amendment before your Lordships seeks to restore a measure of transparency and accountability. It proposes a system by which a public sector worker who reasonably believes that they have been harmed by the operation of positive action can submit a formal question anonymously to their employer. The employer, in turn, must respond. Moreover, employers will be required to publish data on such queries, allowing Parliament and the public to monitor the use and potential abuse of these provisions. This is not a punitive or burdensome requirement; it is the most basic form of procedural fairness.
Let us be clear. This amendment does not challenge the principle of inclusion; it does not deny that discrimination has existed; but it says unequivocally that the answer to past unfairness is not the imposition of new unfairness, that the pursuit of diversity must not come at the expense of justice, and that inclusion must include everybody. Equality before the law is not a suggestion or a secondary consideration to be weighed against modern ideological preferences. It is a constitutional principle that underpins this very Chamber. When we allow it to be weakened quietly and gradually by well-meaning policies that turn into arbitrary practices, we invite division, resentment and, ultimately, more injustice.
The Minister may say that everything that I have described—the delays, the exclusion of white British applicants, the unequal mentoring and the hidden vacancies—is perfectly lawful under existing legislation. He may say that this is precisely how the Government intend for positive action to operate in the public sector. However, I sincerely hope that is not the argument that is to be advanced. Alternatively, the Minister may offer reassurance to the Committee and to the public that existing law already contains sufficient safeguards, and that what we have heard from West Yorkshire Police, Thames Valley Police and others would not and should not be permitted under any reasonable interpretation of the Equality Act. If that is the case, I would welcome that clarification. I would also welcome assurance that there is already a functioning system of redress for individuals who believe that they have been mistreated on the basis of how positive action has been applied.
If the Minister agrees with the points that I have made—that West Yorkshire Police should not have discriminated against white applicants and that there is no mechanism to stop this—then I very much look forward to the Government accepting this amendment. I beg to move.
Lord Liddle (Lab)
I came into this debate by chance, but it seems to me that this is part of a very undesirable development: an attack on the principle of equality, diversity and inclusion policies. These principles are at the heart of my politics. I have fought for racial equality ever since I was a student, when I went on marches against Enoch Powell and what he stood for. I thought that the response of the Labour Government in the 1960s—to make racial discrimination illegal—was very important. In more modern times, when I was chair of Lancaster University and looking at the question of student admissions, I always thought that we should make allowance for the fact that some working-class people had not had the best chance in life and take this into account in admissions procedures Therefore, I rather regret what the Opposition Front Bench is trying to do, which is to undermine the political acceptability of these policies.
There is a danger here. I have seen it from some people in my own party who say that, in response to the alleged great Reform upsurge, we should start abandoning EDI. That would be catastrophic for a social democrat like me, who has always believed in these things. I hope that the Members opposite will withdraw their amendment.
Baroness Wilcox of Newport (Lab)
My Lords, I can hardly follow my noble friend Lady O’Grady in being the TUC’s first woman general secretary, but I was the first woman leader of Newport City Council after decades and the first woman leader of the Welsh Local Government Association—and am still the only one.
I was also a public service employee for 35 years, when I taught in schools in London and south Wales, so I know about positive action. When I became a public service employer, as the leader of Newport, what I tried to do with positive action was to actively take a range of measures and initiatives to encourage people from communities that were underrepresented. We wanted them to bring their talents, experiences and expertise to our organisation, and we wanted them to join us.
Our selection process was no different: through the use of positive action, we did not seek to remove competition; rather, we wanted to allow everyone the same level of opportunity. That final selection for a post was always made on the merit of the applicant. We built our workforce so that it reflected the rich diversity and complexities of our community of Newport and we attracted the best talent from the widest pool of people.
Lord Collins of Highbury (Lab)
My Lords, this has been an interesting debate on positive action, and I am grateful to the noble Lord, Lord Sharpe of Epsom, for initiating it. It raised important issues but, when the noble Lord, Lord Jackson, spoke of straw-man debates, I thought he was a good example in the issues that he raised, because we are not talking about positive discrimination here. As the noble Lord, Lord Sharpe, acknowledged, all Governments have supported positive action, for very good reasons.
The positive action provisions in the Equality Act 2010 enable, in a work context, both public and private sector employers to prioritise the recruitment of and promote people who have protected characteristics that are underrepresented generally or at certain levels in their workplace.
This is permissible only where the available candidates are considered equally qualified for the particular role. In other words, it is a tie-break based on workforce diversity. We therefore do not accept the premise of the new clause that another employee has suffered an unjustified detriment by not being selected. Of course, we are absolutely clear that it is illegal to positively discriminate, and I will give reasons.
The noble Lord, Lord Sharpe, raised something that I read in the Daily Telegraph about West Yorkshire Police. One of the things that, sadly, many of our newspapers fail to do is to issue the full statement. I thought West Yorkshire Police issued a commendable statement. It said:
“In West Yorkshire Police, we are committed to improving equality, diversity, and inclusion within the organisation, and strive to be more representative of the communities we serve.
Our Diversity, Equality and Inclusion team supports and consults with those with different protected characteristics such as sex, disability, sexual orientation, and race to ensure their views can influence and improve the service the force delivers. They also work to improve the wellbeing of everybody in the organisation and inclusivity overall.
The most recent census found that 23 per cent of people in West Yorkshire identified as being from an ethnic minority background. Our current police officer representation from ethnic minority backgrounds is around nine per cent. To address this under-representation, we use Positive Action under the Equality Act 2010. Our use of this was recently reviewed by His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services in an Activism and Impartiality inspection and no issues were identified.
Positive Action allows people from under-represented groups who express an interest in joining the force to complete an application, which is then held on file until a recruitment window is opened. No interviews are held until the window is officially opened to all candidates. Enabling people from under-represented groups to apply early does not give them an advantage in the application process, it simply provides us with more opportunity to attract talent from this pool of applicants”.
I think that is the point that my noble friend Lady O’Grady was making. It is a pity that the Daily Telegraph did not report the full statement from the police because I think it sets this whole thing in perfect context.
A detriment arises where someone is treated unfairly by their employer—for example, where someone is promoted over them who is clearly a weaker candidate. If the reason for that was based on a protected characteristic, it would be unlawful positive discrimination under the 2010 Act and would be rightly challengeable, but this is not the situation under positive action. I think that has been extremely well illustrated by West Yorkshire Police in terms of how it adopted that policy.
We also have doubts as to whether the processes envisaged could be truly confidential. This could have undesirable implications for both the successful candidate and the complainant. Lawful recruitment decisions are confidential for good reason, and opening them up to this kind of probing risks creating interemployee bad feeling, particularly in smaller departments where the identification of people by inference or guesswork is easier.
The Bill is about improving employment rights, not creating new and unnecessary conflicts. Positive action can work effectively only as part of a confidential recruitment process, where transparency is often good for equality. What is proposed would, I fear, work against that, and as such the Government cannot support the proposed new clause.
Lord Sharpe of Epsom (Con)
I thank the Minister for that comprehensive answer, and I thank all noble Lords who have spoken in this quite lively debate. I have to say I was disappointed that the greatest lady of them all who did not need a helping hand did not get a mention, so I will mention her: Margaret Thatcher.
I say to the noble Lord, Lord Liddle, that we are not seeking to undermine anything in this; I was very clear about that. I want to make it clear that, as I said in my opening remarks, this amendment does not seek to outlaw such action, nor does it obstruct efforts to promote fairness. It just seeks to ensure that fairness extends to all employees, not only to those whom the state or the employer happens to deem underrepresented.
I am grateful to the Minister for his extended quote from the Yorkshire case, but I also mentioned the case in Thames Valley. A tribunal there ruled that the three white police officers who won a claim after they were passed over for promotion were overlooked by Thames Valley Police because of their race and an ethnic-minority sergeant was promoted—this is the killer line—
“without any competitive assessment process taking place”,
which is precisely not the spirit of the laws that we have just been discussing.
Lord Sharpe of Epsom (Con)
That is why we were asking these questions and laying this amendment. It is good to have it out in the open. The amendment sought not litigation but clarity. It sought not courtroom battles but a simple mechanism for transparency and accountability. It would have been a route for asking questions and a structure for reporting. It would be a reminder that positive action must remain within the bounds of the law and fairness, and not become a euphemism for sanctioned discrimination. However, I have heard the arguments from the Minister and, not least because of the lateness of the hour, I am content to withdraw the amendment.