Employment Rights Bill

(Limited Text - Ministerial Extracts only)

Report stage
Monday 14th July 2025 Lords Chamber

Moved by

[Baroness Jones of Whitchurch]

46: After Clause 22, insert the following new Clause—
“Contractual duties of confidentiality relating to harassment and discrimination(1) The Employment Rights Act 1996 is amended as follows.(2) After section 202 insert—“Harassment and discrimination: contractual duties of confidentiality
202A Contractual duties of confidentiality relating to harassment and discrimination(1) Any provision in an agreement between an employer and a worker of the employer (whether a worker’s contract or not) is void in so far as it purports to preclude the worker from making—(a) an allegation of, or a disclosure of information relating to, relevant harassment or discrimination, or(b) an allegation, or a disclosure of information, relating to the response of an employer of the worker to—(i) relevant harassment or discrimination, or(ii) the making of an allegation or disclosure within paragraph (a).(2) Harassment or discrimination is “relevant” for the purposes of subsection (1) if—(a) the harassment or discrimination consists of, or is alleged to consist of, conduct engaged in by—(i) an employer of the worker, or(ii) another worker of such an employer, or(b) the person who is, or is alleged to be, the victim of the harassment or discrimination is—(i) the worker, or(ii) another worker of an employer of the worker.(3) Subsection (1) does not apply to provision in an agreement (an “excepted agreement”) that satisfies such conditions as the Secretary of State may specify by regulations.(4) But the Secretary of State may by regulations provide that any provision in an excepted agreement is void in so far as it purports to preclude the worker from making an allegation or disclosure within subsection (1)(a) or (b)—(a) to a specified description of person;(b) for a specified purpose;(c) in specified circumstances.(5) The Secretary of State may by regulations—(a) provide for this section to have effect as if references to a worker included a specified description of individual who is not a worker as defined by section 230(3) but who—(i) works or worked, or is or was provided with work experience or training, in specified circumstances, or(ii) has entered into, or works or worked under, a relevant contract of a specified description;(b) make provision as to who is to be regarded as an employer of such an individual for the purposes of this section.(6) In subsection (5), “relevant contract” means any contract, other than a contract of employment, whether express or implied and (if express) whether oral or in writing, by which an individual undertakes to do or perform (whether personally or otherwise) any work or services for another party to the contract whose status is by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.(7) Regulations under this section may—(a) make different provision for different purposes;(b) make consequential provision. (8) For the purposes of this section, the holding, otherwise than under a contract of employment, of the office of constable or an appointment as a police cadet is to be treated as employment by the relevant officer under a contract of employment.“The relevant officer” has the meaning given by section 43KA(2).(9) Nothing in this section affects the operation of any other enactment or rule of law by virtue of which provision in an agreement may be void.(10) In this section—“discrimination” means discrimination within section 13, or any of sections 15 to 19A, of the Equality Act 2010;“harassment” means harassment of the kind described in subsection (1), (2) or (3) of section 26 of that Act;“specified” means specified in the regulations.”(3) In section 192(2) (provisions of Act which have effect in relation to armed forces)—(a) omit the “and” at the end of paragraph (e);(b) for paragraph (f) substitute—“(f) this Part, apart from section 202A, and(g) Parts 14 and 15.”(4) In section 193 (provisions of Act which do not apply in relation to the security services), for “section 47B” substitute “sections 47B and 202A”.(5) In section 194(2) (provisions of Act which have effect in relation to House of Lords staff)—(a) omit the “and” at the end of paragraph (g);(b) for paragraph (h) substitute—“(h) this Part, apart from section 202A, and(i) Parts 14 and 15.”(6) In section 195(2) (provisions of Act which have effect in relation to House of Commons staff)—(a) omit the “and” at the end of paragraph (g);(b) for paragraph (h) substitute—“(h) this Part, apart from section 202A, and(i) Parts 14 and 15.”(7) In section 236(3) (regulations subject to affirmative procedure), after “125(7)” insert “, 202A”.”Member's explanatory statement
This new clause provides that provision in an agreement between an employer and a worker is void in so far as it purports to prevent the worker making an allegation or disclosure of information relating to certain work-related harassment and discrimination.

[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, this amendment is on the important issue of non-disclosure agreements. NDAs have their legitimate purposes, but they should never be used to take unfair advantage of workers and to cover up workplace misconduct. Evidence has emerged in recent years that some employers have been doing just that.

I praise the work of campaigners who have brought this evidence to light—notably Can’t Buy My Silence, spearheaded by Zelda Perkins, who has been an impassioned campaigner for change for many years and is one of many brave victims who have spoken up. This evidence shows that some employers exploit the inherent imbalance of power they have with their workers and get NDAs signed, fostering a culture of silence and impunity.

I acknowledge the strength of feeling expressed across the House in Committee and thank noble Lords —as well as those in the other place—for raising the evidence for change in Parliament and for their powerful interventions on this issue. I thank in particular the noble Baronesses, Lady O’Grady, Lady Chakrabarti, Lady Kennedy, Lady Morrissey, Lady Goudie, Lady Harman and Lady Kramer.

The Government have listened to those calls for action and tabled Amendment 46. This amendment will void any provision in an agreement, such as a contract of employment or settlement agreement, between a worker and their employer in so far as it prevents a worker speaking out about relevant harassment or discrimination.

Let me be clear that this amendment will not impact on the legitimate use of NDAs—for example, to protect commercially sensitive information, ideas or intellectual property in business transactions. Relevant harassment or discrimination is defined in line with the existing definitions in the Equality Act 2010 and is conduct which the worker or a co-worker has suffered or is alleged to have suffered, or conduct carried out or alleged to be carried out by the employer or a co-worker—for example, where a colleague tells another colleague that their boss has sexually harassed them. This will mean that workers who have experienced harassment or discrimination can speak up, as well as those who have witnessed misconduct or who have knowledge of it.

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[Lord Hunt of Wirral (Con)]

My Lords, this has been a very important debate and I thank the Minister, the noble Baronesses, Lady O’Grady of Upper Holloway, Lady Goudie and Lady Ramsey of Wall Heath, the noble Lord, Lord Cromwell, and my noble friend Lord Lucas for their contributions. In particular, I congratulate and thank the noble Baroness, Lady Kramer, especially for Amendments 95 and 96. They are vital and long overdue, and I support them very strongly indeed. They strike at the very heart of what it means to have a fair, transparent and accountable workplace. Too often, whistleblowers have faced retaliation, dismissal and isolation, not because they have done anything wrong but because they have identified where something has been severely wrong. That is a moral failure in our system, and it is one that this House must now move to correct.

Workplace harassment, abuse, corruption and mismanagement are not minor private inconveniences to be swept under the carpet but serious matters of public interest. It is precisely in the public interest that these amendments redefine what constitutes a protected disclosure and establish an independent office of the whistleblower. As the noble Lord, Lord Cromwell, just pointed out, this new body would be more than just symbolic. It would enforce real standards, offer real protections and provide real redress for those who are brave enough to come forward. It would finally send a clear signal to employers that retaliation is no longer ever going to be tolerated and that burying the truth behind legal threats and non-disclosure agreements has to stop.

It is particularly important that these protections extend to disclosures around violence, harassment and abuse in the workplace. These are areas where silence is too often enforced and where whistleblowing can save others from further harm. I urge the Government to take this opportunity to stand firmly on the side of transparency, accountability and justice.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I thank all noble Lords for their support for our amendment. I assure your Lordships that we will follow it through to full implementation.

The noble Lord, Lord Lucas, asked a number of specific questions. There will be further consultation on the regulations, but I assure all noble Lords around the House of the Government’s absolute determination to get this and the regulations on to the statute book. I know that noble Lords will hold our feet to the fire; I will be doing that as well, to my own Government. We will deliver on this.

Moving on to Amendments 95 and 96, whistleblowers play an important role in exposing wrongdoing and malpractice in the workplace. It is vital that workers are able to come forward with concerns without suffering adverse treatment by their employer. That is why whistleblowers have been protected from dismissal and detrimental treatment under the Employment Rights Act since reforms were introduced in the UK in 1998 through the Public Interest Disclosure Act. However, some time has passed since these world-leading reforms were introduced. The Government acknowledge concerns from noble Lords and others that the whistleblowing framework may not be operating as effectively as it should be.

That is why we are taking a range of actions to strengthen the framework. Through the Employment Rights Bill, we are introducing a measure that will expressly make sexual harassment the basis for a protected disclosure. This will provide welcome clarity for workers and have wider benefits, including encouraging more workers to speak up about sexual harassment by using whistleblowing routes. The measure will signal to employers that workers who make protected disclosures about sexual harassment must be treated fairly, as workers will have legal recourse if their employer subjects them to detriment as a result.

Additionally, we have committed to implementing professional standards for NHS managers to hold them accountable for silencing whistleblowers or endangering patients through misconduct. Most recently, the Government amended the Public Interest Disclosure (Prescribed Persons) Order 2014 to allow workers to make protected disclosures to relevant government departments on suspected breaches of sanctions. These changes will help workers to qualify for employment protections when disclosing information on financial, transport and other trade sanctions to government and to seek redress should they suffer detriment or dismissal due to making a protected disclosure.

The amendments proposed in this group would make substantial changes which should be considered as part of a broader assessment of the operation of the whistleblowing framework. For example, the amendment that would create an office for the whistleblower would introduce a significant structural change to that framework. The Government also note that there are differing views among stakeholders about the role of a new body.

However, as an indication of the continued movement in this space by the Government, I am pleased to announce that the Government are today publishing the research report on the whistleblowing framework, which was undertaken by the previous Government. The report provides observations and insights about the operation of the whistleblowing framework, obtained from stakeholder engagement, and a literature review, which will be a positive contribution to debate. The Government look forward to engaging stakeholders about that report and the proposal for reform. On that basis, I ask the noble Baroness, Lady Kramer, not to press Amendment 95.

[Lord Lucas (Con)]

I beg the Minister, if I might, for a letter in response to my questions. I quite understand that she cannot answer them now.

[Baroness Jones of Whitchurch (Lab)]

I am sure that we can write and provide some clarification on that. I commend Amendment 46 to the House.

Amendment 46 agreed.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, I will speak very briefly. It is a great pleasure to follow the noble Baroness, Lady Kramer, who very powerfully made the case for Amendment 48. I am going to focus on Amendment 47. The noble Baroness, Lady Smith of Llanfaes, has already made the case for that very powerfully, but I will add one very recent set of statistics to it.

The noble Baroness mentioned unions and, just last week, Unite put out a study that polled women across the 19 sectors of work that it covers. It found—these figures are truly shocking—that a quarter of respondents said that they had been sexually assaulted at work, in a workplace-related environment or on the way to and from work. Some 8% said that they had been a victim of sexual coercion at work. This is the sort of situation that was referred to by the noble Baroness, Lady Smith.

People are in insecure employment and zero-hours contracts, which the Government are doing something about—perhaps not quite enough but something. If you are in a situation where you desperately need those hours and the supervisor decides where on the rota you are and how many hours you will get, that puts the supervisor in an incredible position of power, which can and clearly is being abused.

What is really telling is that 56% of respondents said they had heard a sexually offensive joke at work and 55% had experienced unwanted gestures or sexual remarks. I am sure the government response will be to tell us that they are taking measures to react, but, crucially, Amendment 47 sets out a responsibility to prevent it happening.

This really needs to be regarded as a public health measure. We hear often in your Lordships’ Chamber about the issues around mental health and well-being and the problems we have in our society. If you are forced to keep going into a workplace that is actively hostile to you, with gender harassment and abuse, then that will be very bad for you and for the company. As a society, we should not tolerate it.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Lords who have contributed to this debate, and in particular the noble Baroness, Lady Smith of Llanfaes, for introducing it. We must, of course, recognise that violence and harassment in the workplace are unacceptable in any form. It is also important to acknowledge that women, particularly in certain sectors, are often at greater risk and may face additional barriers to speaking out or seeking redress.

This amendment raises serious and pressing concerns about how we ensure that all workplaces are safe, inclusive and free from abuse. The call for more proactive duties on employers and greater involvement from the Health and Safety Executive is one approach to addressing these challenges. However, as with any proposed legislative change, it is right that we consider carefully the potential implications, including how such duties would be enforced, the capacity of the Health and Safety Executive, and how we balance existing legal protections with any new obligations we would place on employers. I am very interested to hear what the Minister has to say on this point, particularly with regard to how the Government see the role of regulation, guidance and support in preventing workplace violence and harassment.

In Amendment 47, my interest was piqued by subsection (3C) to be inserted by the proposed new clause, which refers to

“gender identities, including women and girls”.

That seems to me to stray dangerously on to Supreme Court territory, which, as I understand it, we have yet to hear the EHRC’s guidance on. It strikes me as a tad premature, but I am interested to hear what the Minister has to say on it.

[Lord in Waiting/Government Whip (Lord Leong) (Lab)]

My Lords, I thank all noble Lords who have contributed to this short debate, and I thank the noble Baroness, Lady Smith of Llanfaes—I apologise if I have mispronounced that—for tabling these amendments. I reassure her that the Government are fully committed to protecting workers from workplace violence and harassment, in particular gender-based violence and harassment.

The current strong regulatory framework ensures that workers are protected from such risks. Employers currently have a clear duty to protect their workers from health and safety risks under the long-established Health and Safety at Work etc. Act 1974 and the statutory provisions made under it. That includes taking action to prevent workplace violence. They are required to assess those risks and take appropriate steps to eliminate or reduce them.

As part of this existing regulatory framework, the Management of Health and Safety at Work Regulations 1999 require employers to assess risks that arise from work activity, including the potential for violence, and take suitable action to reduce or eliminate those risks. The Health and Safety at Work etc. Act 1974 and its associated regulations cannot be used for issues that arise outside of work activity, as that would result in the Health and Safety Executive operating ultra vires.

The HSE and local authorities, which are responsible for enforcing the Health and Safety at Work etc. Act 1974, take both proactive and reactive measures to ensure that employers are complying with their duties. This includes ensuring that employers assess risks and implement appropriate measures to protect their workers and anyone else affected by their work from workplace violence.

The HSE has also published accessible guidance on its website to help employers comply with their legal obligations. In the noble Baroness’s proposal, there is a request for the HSE to publish a health and safety framework specifically focused on violence and harassment in the workplace. However, this framework already exists as employers have duties under the Management of Health and Safety at Work Regulations to ensure they have sufficient arrangements in place to manage health and safety risks arising out of work activity, including violence and aggression. Where an employer is found to have breached health and safety law, the HSE does not have powers to issue fines. When a significant breach is identified and the case meets the threshold for prosecution under the Code for Crown Prosecutors, the HSE brings employers to account through the criminal justice system. It is then for the courts to decide the penalties subsequently imposed if an employer is found guilty of such offences, and any fine imposed by the courts goes directly to His Majesty’s Treasury.