Employment Rights Bill

Debate between Baroness Chakrabarti and Lord Jackson of Peterborough

Committee stage
Wednesday 18th June 2025 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I will speak very briefly on this amendment. It is quite an ingenious and intelligent amendment that is quite superficially attractive. I know the Minister will give it proper and due consideration.

My only problem is that it draws an analogy that does not really stand up to close scrutiny. I defer to the noble Baroness’ greater legal expertise, but when you are employed, there is a personal contract between the employee and the employer that you have freely entered into. It may be that, in the course of that contract, your pay falls behind and there are societal and economic reasons why you are paid different amounts of money. We could be here all week discussing that.

However, it is not the same as the relationship you have with a nuclear power station, where you have the expectation that you will be kept safe from accidents and drastic events; with your local water authority and the expectation that you will not be flooded; or when you go on an aeroplane that, God forbid, that aeroplane will not crash. You do not have that direct contractual relationship with those bodies. In other words, you essentially defer that responsibility legally to other bodies to intercede on your behalf. Therefore, this amendment, in a circuitous way, undermines the very concept of a one-on-one contractual relationship, so I do not think it is analogous.

Having said that, I would not particularly oppose this amendment. It is ingenious and interesting but, with all due respect, I do not think the noble Baroness draws an accurate analogy between the two.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Lord for taking the argument so seriously. Of course, I disagree with him. When you go to eat in a restaurant, go to school or buy a can of baked beans, you may well have a private, contractual relationship with the supplier of that good or service. None the less, the state has decided that it needs to intervene because these power relationships are not all equal and there is a public good in the baked beans being safe to eat, the school delivering a good service, et cetera.

So, from the moment the UK Government and the UK people took the democratic decision that there should be laws to protect school standards, food safety, health and safety and non-discrimination in pay—supported by people from all parties, including in your Lordships’ House—it is not just a matter of private contract between two parties anymore; it is actually a matter of public policy and a wider rule of law point. The non-discrimination point has been non-partisan in this country for some years.

Most equality legislation has, perhaps, been promoted by Labour Governments, but the disability rights Act is the obvious exception. There has been a bipartisan consensus that we should not discriminate against people because of their sex, including in pay. We just have not been delivering on pay as well as we have been delivering in other areas of women’s lives. Therefore, the analogy with school standards, health and safety standards and food standards works. If we want to achieve equal pay, we have to take it seriously in enforcement.

[Lord Jackson of Peterborough (Con)]

Just to come back to the noble Baroness, would she therefore extend the provisions of her amendment to all protected characteristics under the Equality Act 2010?

[Baroness Chakrabarti (Lab)]

Yes, I would.

Employment Rights Bill

Debate between Baroness Chakrabarti and Lord Jackson of Peterborough

Committee stage
Monday 19th May 2025 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I rise to support the amendment ably and comprehensively moved by my noble friend Lord Hunt of Wirral, which would, as he explained, insert a new clause. It is an eminently sensible amendment. The noble Lord, Lord Fox, described the arguments put by this side in the previous debate as straw man arguments. He was like Don Quixote tilting at windmills, because his claim that they were straw man arguments was comprehensively eviscerated by my noble friend Lord Young of Acton. They were substantive arguments and substantive concerns, notwithstanding the noble Lord’s comments and those of noble Lords on the Government’s side.

Clause 20 could be described as a hologram or a chimaera because it does not provide very much in the way of detail about the practical ramifications and impacts of this clause on businesses, particularly smaller businesses. The amendment is very sensible. In section 10 of the cost-benefit analysis in the Employment Rights Bill: Economic Analysis that the Government published last October, one is hard pressed to see any detailed empirical evidence from reputable economists or other academics which would sustain the likely costings that the Government have prayed in aid in favour of this part of the Bill. We are told that the universal cost of the Bill to business will be a very speculative £5 billion, but the source of that figure is not very clear; in fact, it is quite opaque. I do not believe that figure. For a number of reasons, the data is suspect, which is why we need the proper impact assessment so persuasively argued for by my noble friend on the Front Bench. We have not had a proper analysis of the detail in a risk assessment of section 10 of the cost-benefit analysis.

We also have not had a proper consultation process on the Bill. We have not had the opportunity to look at the likely impacts that flow from this clause. I say at the outset that, like my noble friend Lord Young of Acton, I am a proud member of the Free Speech Union, which has made a similar case about consultation.

We also do not know anything about the opportunity cost. Not everyone is an economist, but opportunity cost is what may have happened if this Bill had not come along. I suspect that employers, including smaller employers, would have taken on more staff, had there not been the encumbrances in this clause. In other words, they will be risk averse: they will not wish to run the risk of taking people on, given the litigation and vexatious claims which may well arise from this clause.

The figure the Government have put forward for the number of employment tribunals does not stand up to scrutiny, given the pressure that this will put on the tribunals themselves, as well as the other courts that will be responsible for adjudicating on this litigation. Indeed, as my noble friend said, this will exacerbate the already very significant problem of backlogs in the employment tribunals.

I turn to the kernel of this amendment. If I take the Minister and, indeed, the noble Baroness, Lady Carberry, who supported her from the government Benches, at their word, I do not know why they would not wish to support the free speech caveat in this amendment. Although they have not properly identified what harassment is—they have not defined it—they are going after people who are committing acts of harassment. They are not seeking to stifle or curtail free speech.

[Baroness Chakrabarti (Lab)]

I am grateful to the noble Lord for giving way. I would suggest that the so-called “free speech caveat” is Section 6 of the Human Rights Act, which requires all public authorities, including courts and tribunals, to interpret all other legislation in a way that is compatible with convention rights, including—for the purposes of the present debate, as I understand the noble Lord’s concerns—Article 10 of the convention on human rights.

[Lord Jackson of Peterborough (Con)]

I defer to the noble Baroness’s expertise on human rights legislation, but we are considering this specific, bespoke legislation. There will not necessarily be a read-across between that and—

[Baroness Chakrabarti (Lab)]

There will.

[Lord Jackson of Peterborough (Con)]

Well, the noble Baroness will not be present at every employment tribunal and hear and adjudicate every case. As my noble friend Lord Young of Acton has said, there is a significant threat of inadvertent issues arising from this legislation, which, as my noble friend Lady Cash has said, is very poorly drafted. As subsection 2(a) of the proposed new clause sets out, it is important to look through the prism of free speech at Clauses 19 to 22.

It is also important to look at the likely costs to employers. This is the central point of my remarks: we do not know what those costs will be. It is certainly appropriate that Ministers be required to tell Parliament what the ramifications are in terms of cost. This is a Government who are committed to growth and to supporting businesses in all their endeavours. Therefore, it would be sensible to consider a review of how these issues impact on businesses.

On proposals for mitigations, there have been no ideas, no protocols, no concordats, and no policies put in place to give any guidance to smaller businesses—I am not necessarily referring to the smallest micro-businesses—to cope with the problems deliberately arising because this Labour Government have chosen to put these encumbrances and burdens on businesses. They are not giving any support to businesses to help cope with this. The costs will fall on the shareholders, on the businesses, and ultimately on the workforce—and it will cost jobs. For that reason, I support the amendment. It does not detract from the important commitment to protect ordinary working people, who deserve to be able to go to work without being bullied, harassed or treated unfairly or egregiously. We all agree with that, on which there is a consensus. It would not detract from that to make an amendment that would provide extra protections against people who are vexatious or malicious, or who cause difficulties in the long run, for no apparent reason. It is a sensible amendment that would protect business and would also protect the workforce.