Restriction of Public Sector Exit Payments Regulations 2020

Baroness Finlay of Llandaff Excerpts

Wednesday 23rd September 2020 Lords Chamber

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, I declare that I am a former BMA president. The BMA is so concerned that it is seeking a judicial review of the regulations, having sent a letter before action on 17 August 2020, setting out why these regulations would be unlawful, but received no reply. It believes that the regulations will force public bodies to act unlawfully. NHS staff have contracts of employment that, in the event of redundancy, contain clauses defining the level of contractual redundancy payments, which can exceed £95,000.

How can the Government justify extending the scope of the definition of exit payments to include payments made to compensate an exiting employee for an infringement of their legal rights during their employment, before their exit? The BMA believes that doing so is unlawful. What about a person with an equal pay claim that goes back years, who leaves before the back pay is settled? How can Government justify preventing public bodies paying money owed to an exiting employee—payments such as a contractual redundancy payment, to which the employee is entitled under existing lawful contracts of employment negotiated in the proper and recognised way? Again, the BMA believes this is unlawful.

Junior doctors rotate as part of their training, moving from one trust to another, often with varying overtime payments owing them a few hundred pounds. These complex calculations will now fall to the trainee, keeping them away from clinical work. Therefore, how can the Government justify imposing a reporting duty on all exiting employees, regardless of the amount due to them—even for £200—as would be the case for thousands of junior doctors who change employer regularly through their training and will frequently be owed sums by their former employer nowhere near the £95,000 limit? The BMA believes that this is unlawful and it is clearly irrelevant to the statutory scheme.

I gave prior notice of these questions. NHS staff are public sector, have worked above and beyond to tackle Covid-19, and must not be demoralised by these regulations, which appear unlawful.