Employment Rights Bill

Baroness Cash Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

Consider, for example, a casual exchange in a lobby between two clients overheard by a member of staff, a third party or maybe another client from a different part of the world. I would like to think that this would never happen, but life is never predictable. Should the company be responsible for that? I would argue not. If, in effect, the legislation discourages companies from welcoming clients and prospects to their offices, we will risk undermining one of the UK’s most successful and globally respected industries, the insurance industry, let alone all the other industries in this country. This sector contributes significantly to our economy through invisible earnings and supports the Government’s growth agenda. For these reasons, I support these amendments. They offer a realistic approach to the responsibilities of business while continuing to uphold the principles of dignity and respect in the workplace.

[Baroness Cash (Con)]

My Lords, there have been very helpful and mainly anxious speeches during this debate. I am very grateful to my colleagues but also to the noble Baroness, Lady Carberry, whose speech this afternoon was probably the most enlightening and helpful. I say that because throughout her speech she described how improbable it was that anything described in the other speeches would happen. Unfortunately, we do not have the promise of the noble Baroness adjudicating on the claims that will be brought as a result of this clause.

I should declare at the outset that I spent 15 years as a libel barrister specialising in media law and freedom of expression. I am also a commissioner at the EHRC. I know only too well that the law as intended gets misconstrued. If one looks back at the EHRC’s code of practice in relation to equal pay, one sees very clearly that the code, issued under Trevor Phillips, was never intended to be deployed in litigation that has resulted in the bankrupting of Birmingham City Council or in the absolutely constraining circumstances imposed on large companies. It is just not there. Similarly, the reputation of our immigration tribunals is on the floor because they are likewise applying provisions in the Human Rights Act, which we are bound by the ECHR to apply, but they are applying them in subjective, absurd ways that I do not doubt for a minute the noble Baroness, Lady Carberry, would throw out if they were in front of her.

So what are we to do? We know that there is common sense on all sides of this Chamber, but our job is to scrutinise legislation and ensure that, when it gets to a court and to a judge, it can be properly and safely applied. That is why I support some of these amendments: there must be a way, and I beseech the Minister to review this and to look at what anxieties on this side of the Committee could be closed by some of these amendments.

I have done a search of the Article 10 case law under the human rights and European legislation where there has been tension in other countries. In France, for example, employees were harassed directly because of smoking outside—only in France, of course. In Germany, it was because they were wearing uniforms while biking. In all those cases, Article 10 rights were protected because the legislation was specifically drafted to say that the harassment was directed at the employee. The original clause here is not safely drafted, which is why I am asking the Minister to look at this again. It is not clear that it is only direct discrimination or harassment of an employee that will be caught by this. That is why we have had so many speeches this afternoon worried about what loopholes are being allowed with the clause as currently drafted. To be compliant with Article 10, we need to tighten it. We need, in this Chamber, to scrutinise it and ensure that the message goes back to the Government that it needs to be tightened.

The other thing that the noble Baroness, Lady Carberry, so beautifully enunciated in her speech was how it ought to be a reasonable perception of the activity that was deemed to be harassment. Again, we would hope that any sensible court would look at that and say, “Yes, absolutely”, but that test is not in the clause as currently drafted. I will read Clause 20, “Harassment by third parties”:

“In section 40 of the Equality Act 2010 (employees and applicants: harassment), after subsection (1) insert … (1A) An employer (A) must not permit a third party to harass a person (B) who is an employee of A”.


There is the first problem: we do not limit the harassment to direct harassment, and we need to do so. To ensure that it will be applied and interpreted by tribunals in the way that the noble Baroness, Lady Carberry, envisages, we need to ensure that that is tightened. Clause 20 goes on:

“(1B) For the purposes of subsection (1A), A permits a third party to harass B only if … the third party harasses B”—


there is still no tightening of the definition of “harass”—

“in the course of B’s employment by A, and … A failed to take all reasonable steps to prevent the third party from doing so … In this section ‘third party’ means a person other than … A, or … an employee of A”.

There is no reference at all in that clause to what test a court is to apply to the perception by the employee of the harassment. All the European cases, by which we are still bound under the ECHR, require an objective test to safeguard our freedom of expression rights under Article 10. What I have heard this afternoon is that there is no dispute between the two sides of this Committee that protecting Article 10 in the balance that happens here is the right thing to do, but that test is not in this clause, which is why these amendments are so important. We need that test and we need the direction of the harassment at a specific person, so that it cannot scoop up the other conversations or any of the other activities that are happening around them. It must be like the French case, the German case and all the other cases, which anyone is welcome to look up as I did. For that reason I support these amendments and beseech the Minister and the Government to look again at this. The way this clause is drafted is of very real concern.

[Baroness Carberry of Muswell Hill (Lab)]

My Lords, I did not want to interrupt the noble Baroness when she was speaking. However, I refer her to Section 26 of the Equality Act 2010, with which I am sure she is familiar, as an EHRC commissioner. That is where the relevant test is set out.

Employment Rights Bill

Baroness Cash Excerpts

Committee stage
Tuesday 13th May 2025 Lords Chamber

[Baroness O’Grady of Upper Holloway (Lab)]

My Lords, I support the noble Baroness, Lady Lister, and Amendment 72, and I add my thanks to the Safe Sick Pay campaign, the Health Foundation and other organisations. I heartily welcome the Labour Government’s commitment to strengthening SSP by removing the lower earnings limit and the waiting period.

A nationally representative survey conducted for the TUC found that around half of employees get their full pay as usual when sick, but that around 28% were forced to rely on SSP alone. It also found a clear class divide when it comes to who gets what: eight in 10 of higher earners—over 50 grand a year—got full pay when off ill, compared with only one-third of lower earners.

The Covid pandemic exposed just how precarious life is for those in insecure, low-paid work, and we do not know how many preventable illnesses were caused by people struggling into work and spreading the virus because they could not afford to stay home. But we do know, as we have heard, that forcing people back to work when they are ill is bad for workers and bad for business, puts pressure on the NHS and is costly for the economy.

I am very grateful to the Minister for taking time to meet me and the noble Baroness, Lady Lister, to discuss our concern that the formula adopted by the Government could leave low-paid workers who earn just above the lower earnings limit worse off. The DWP’s answer has been that abolition of the waiting days before a worker receives SSP ensures that, for the first three weeks, those losses will be offset. But, surely, the policy intention of the Government’s commitment to abolish the waiting days is not to make up for losses caused by its own formula. The policy intention should be to ensure that every worker who relies on SSP is, in fact, better off, and we need to protect those on longer- term sickness who are, for example, receiving cancer treatment.

I note the Government’s concern that the formula must be designed in a way that avoids workers getting more in sick pay than they would in wages, and avoids a cliff edge. I remain unconvinced, however, that it is beyond the wit of the DWP to come up with an approach that protects that position without penalising a group of low-paid workers.

Secondly, as we have heard, this amendment seeks a review of the rate of statutory sick pay. As the Resolution Foundation has pointed out, unlike many other European countries, the rate is not linked to earnings. Currently at £118.75, SSP equates to 27% of the national minimum wage. In 1999, SSP was equivalent to 43% of the national minimum wage. That is a big drop. For a decade and more, SSP has failed to keep up with the cost of living or increases in the living wage.

The Work and Pensions Select Committee has confirmed that the SSP rate is not enough to live on. At the Covid public inquiry hearing in December 2023, Matt Hancock was quizzed by Sam Jacobs, who is counsel for the TUC. The former Health Secretary agreed that the rate of SSP should be higher. How could he argue otherwise, when the UK languished at the bottom of the OECD league for statutory sick pay under the previous Government and when we know that such a low rate of SSP is a danger to public health?

I understand that perfection must not be the enemy of the good, but an SSP rate that works out at around £3 per hour is some way short of either perfection or good. This amendment implicitly recognises that this woeful legacy of neglect in tackling it will not be remedied overnight. It would, however, be welcome if the Minister could reassure us today that both the formula and the rate of statutory sick pay will be reviewed before the Autumn Budget, and rightly so.

[Baroness Cash (Con)]

My Lords, I start by declaring interests. I am an employer, the founder of a listed business, MindGym, which is a behavioural science business, and an expert in corporate training to improve employee well-being and productivity. I am also a commissioner at the EHRC.

I support the Opposition’s amendments in this group: Amendments 71A, 71B, 73, 74A, 74B, and 74C. At the outset, I would like to note for the record that everyone here is driven by compassion for those who need protection. I pay tribute to the speeches by noble Lords from the Benches opposite, but I am very concerned about these proposals by the Government.

I am grateful to the noble Baroness, Lady O’Grady, for drawing our attention to the Resolution Foundation report, which has identified some of the points that support the amendments from this side of the Committee. I will return to those.

The Government have said on record that they want growth. We support that goal. They want businesses to succeed. We support that goal. They have also said on the record that they want to reduce the number of people who are out of the workforce on long-term sickness—currently running at 2.8 million. We support that goal. What we do not understand is how on earth the Government believe that this legislation and these proposals are going to achieve any of that. They are based in compassion, I have no doubt, but the Government are pursuing a culture of incapacity and dependency that will impede the stated aims.

Data (Use and Access) Bill [HL]

Baroness Cash Excerpts

Consideration of Commons amendments and / or reasons
Monday 12th May 2025 Lords Chamber

[Baroness Cash (Con)]

My Lords, first, I declare my interest as a commissioner at the EHRC, and I have also been a lifelong campaigner for and defender of free speech, so I do not approach this subject lightly at all. I have some sympathy with the Government’s position that a reasonable excuse is required to be compatible with Article 10. However, I think the definition being as broad as it is reinforces the worries of my noble friend Lady Owen and the noble Baroness, Lady Chakrabarti.

I was not really clear, and am concerned to know, as noble colleagues have already alluded to, on why the defence is drafted so widely. I was not sure whether this was coming from EU law and, if that were the case, I wanted to draw the House’s attention to the most recent EU directive on preventing violence against women and girls. If we look at that directive, in section 19, it has unequivocally decided that deepfakes should be criminalised and:

“Such production, manipulation or altering should include the fabrication of ‘deepfakes’, where the material appreciably resembles an existing person, objects, places”


and so on. I appreciate, of course, that we are no longer bound by EU law, but given that it will be applied by the ECHR, under which we still operate, it is interesting to note that in section 20 it has acknowledged the Article 10 obligation but has narrowly defined it.

I draw attention to this and ask the Government to take it into account and reassure this House that they will urge guidance to be issued, if this defence has to go forward as it is currently drafted, so that any reasonable excuse defence maintained in this clause is clearly confined by guidance issued as soon as possible by the CPS.

[Lord Markham (Con)]

My Lords, I rise to speak to the Motion standing in the name of my noble friend Lady Owen of Alderley Edge. Her amendments fall into two categories, and we support her in all of them. I start by joining the noble Baroness, Lady Chakrabarti, and others in paying tribute to her tenacity in pursuing this issue by standing up for women who should not have to live in the fear of becoming victims of sexually explicitly deepfakes. As mentioned, she has won the deep respect of this House and, at the same time won many, many friends from her action. The cross-party support that she has managed to gain from this shows this House at its best—a House of which I am proud to be a Member.

First, my noble friend has tabled reviews to ensure that the offence that is being created as a result of her tireless campaigning is effective. We support her in her Motion and agree with her that we must do everything we can to ensure that the law is robust and effective in protecting women. Secondly, like many others, I have been puzzled by the ECHR reasonable excuse approach being used by the Government. It was very helpful, as ever, to have experts on hand in this matter and my noble friend Lady Cash to bring her expertise and agree with the basic position that, while we understand it, it is very widely drawn as it is currently set up.

I think it is very sensible what my noble friend is trying to do in seeking to tighten those definitions of reasonable excuse and remove reasonable excuse in the case of requesting sexually explicit deepfakes in her Motion 55A and Amendment 56A. I completely understand why she has brought them, and, while they would appear to be instead of the reviews, which we also support, we feel that my noble friend is right to challenge the inclusion of reasonable excuse as a defence to these offences. On that, she has our complete support.

Employment Rights Bill

Baroness Cash Excerpts

2nd reading
Thursday 27th March 2025 Lords Chamber

[Baroness Cash (Con) (Maiden Speech)]

My Lords, it truly is an honour to take a place on these venerable Benches and make my maiden speech today. I start by congratulating the noble Baronesses, Lady Berger and Lady Gray, on their excellent maiden speeches—and no easy acts to follow. I do not really need to worry too much, I believe, because truly I am just the warm-up act for the noble Lord, Lord Young, today. He is someone who has already starred in many of his own features in life, and he is a fine colleague. So I look forward also to hearing his maiden speech.

I thank noble Lords on all sides of the House for the warmest welcome. It is true what everyone says about the courtesy and embrace when one arrives here. I am very grateful also to all the officials and staff, particularly our dedicated doorkeepers. I am grateful to my sponsors, some of the finest academic minds and most principled people I know: the noble Baroness, Lady Falkner of Margravine, who is also my chair at the EHRC, and the noble Lord, Lord Godson, who has been a dear friend for nearly 30 years. I am also grateful to the noble Baronesses, Lady Finn and Lady Morris of Bolton. I have two mentors. I have not dared to ask why they thought I might need double supervision, but I thank them for their courage in stepping up to do it.

Since learning that I would be joining your Lordships, I have received many kind messages and kind words—including, rather delightfully, from my primary 7 teacher Ken Cardwell. That reminded me that, when I was 10 years old in his class, he had also once trusted me to make a speech on a subject of my choice, on the day of a school inspection. Unaccustomed as I am, and have always been, to public speaking, I relished this prospect, and he was confident that this particular child would not let him down. When I ran into him 20 years later, the horror was still palpable on his face when he described how I had stood up in front of the class and announced, rather cheekily, “I’m not giving a speech today”. His heart sank and there was the most terrible pause, until I whisked from behind my back a hand puppet and announced, “He is” and proceeded to lecture them all on ventriloquism.

I will not be quite as random today. I have chosen this debate because I have a life that some of you do not know much about. I have been very lucky to know some noble Lords in parts of my career as a barrister, parliamentary candidate or, indeed, a policy wonk—something I still love. But what is less well known is that I have for 10 years, prior to now, chaired the UK’s leading behavioural science business, which we took on to the stock market. During that time, I have seen first-hand the challenges of running an SME. We confronted the pandemic, we then had costs ratcheting and salary insecurity as a result of the war in Ukraine. Now, we are looking forward to really strangulating increases in national insurance. I also know from running that business, because we work with 62% of the FTSE 100, that most employers want the best for their employees. It is not a them and us; talent is what makes businesses work and grow, and they are highly valued by the majority of people. It saddens me enormously to know so many people in business spoken about in some of the ways we have heard in the other place.

This was not my first experience of business. I grew up in Northern Ireland in the 1970s. That was the height of the Troubles, but it was also a low ebb for our economy. I spent my early years in the anteroom of a tiny newsagents run by parents. They worked incredibly long hours, while my father also held down a full-time job. It was not easy and costs were high.

Those micro-businesses—I owe my parents a world of thanks for the way they worked in theirs—employ 33% of the workforce. That is an enormous number of businesses with between nought and nine employees. The consequence of some of the changes introduced by this Bill in subjecting those tiny businesses to some of these new ideas will be to strangle them, mostly at birth. Costs are rising, taxes are rising and profits—that dirty old word—for them are falling. Profits for those businesses can mean a pair of trainers for their children, or the hope of a family holiday. Are we really going to do that to 33% of the providers of our workforce?

From the CBI to the Federation of Small Businesses, every representative group is warning—pleading—that the implications of this Bill mean a disaster for growth in this country. It is not all bad—of course we want to see more fathers take parental leave, and there are other good things—but the overall direction of travel is to create unintended consequences. If I have learned anything from leading a behavioural science business for 10 years, it is that, often, the things we do to achieve a certain outcome have exactly the opposite effect. This Bill is destined to destroy our growth.