Employment Rights Bill

Baroness Kramer Excerpts

Committee stage
Monday 16th June 2025 Lords Chamber

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

My Lords, I oppose this group of amendments. I have to say that it is with deep regret, because my assessment of them is that they are trying to stir up a spectre of trade union intimidation, which reminds me strongly of the initiative going back in history—not quite as far as the noble Lord, Lord Jackson—to 2014, when the Government commissioned Bruce Carr QC, as he was then, to conduct an investigation of intimidation in workplaces. As it transpired, Mr Carr declined all opportunities to make any recommendations whatever on the basis of the evidence that he received. For the TUC’s part—and I was at the helm at the time—we described it as a party-political stunt and said that, frankly, the then Conservative Party in government should have repaid the taxpayer for the significant cost of conducting that investigation that led to zero—I repeat, zero—recommendations for changes in the law. In fact, Mr Carr went on just a year or two later to oppose the then Conservative Government’s Trade Union Bill as “a threat” to industrial relations and to civil liberties.

That brings me to safe and secure e-balloting. It seems to me that anybody who was a true democrat would be looking to increase opportunities for participation in safe, secure, secret and electronic balloting. Any boost to democracy should be welcome. I have to say that it is disappointing that those who oppose the right for trade unionists to cast their vote safely, securely and secretly by electronic ballot apparently believe that there is no threat of intimidation in respect of political parties. Therefore, it is fine for political parties to use modern methods of balloting; it is not fine for trade unionists. I would ask what view that gives us of the perception of trade unions from the Benches opposite, when, on the contrary, we should be proud of trade unions. We should tackle the causes and not just the symptoms of industrial action. We should be proud of constructive industrial relations in this country, which are vital for productivity and growth.

[Baroness Kramer (LD)]

My Lords, Amendments 247, 248 and 250 would introduce further requirements in relation to trade union ballots, particularly concerning the risk of intimidation, the use of workplace locations and the information that unions must provide to members. While the intention to ensure that ballots are conducted fairly without pressure is understandable, I question whether these proposals are justified. They appear to introduce new procedural barriers for trade unions, with little evidence that safeguards are failing. There is a broader concern that measures of this kind may tilt the balance even further against workers attempting to organise and exercise their rights. I would be grateful if the Minister could set out whether these amendments are proportionate and necessary, and how they align with the broader approach to employment and industrial relations.

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

My Lords, I thank the noble Lord, Lord Hunt of Wirral, for introducing these amendments tabled by his noble friend Lord Sharpe of Epsom. I thought that, with the contribution from the noble Lord, Lord Jackson of Peterborough, we were starting the history lessons a little early today—early in terms of this being the first group and in going back to the 1830s. I bend to no one in enjoying anecdotes about the Tolpuddle Martyrs, so I thank the noble Lord for his contribution, although I am not sure what it added to the debate.

Amendment 247, although well intentioned, is unnecessary. We all share the concerns outlined by the noble Lord, Lord Hunt of Wirral, about interference in balloting around industrial action. We understand that no worker takes a decision about voting for industrial action lightly—whether it is strike action or action short of a strike—and that they understand the consequences, because if action is voted for, they will be the ones who suffer directly by losing pay. We must ensure that when we talk about this, we talk about both sides of the ledger.

The amendment is well intentioned, but it is unnecessary, because Section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992 already requires that every person entitled to vote in an industrial action ballot must be allowed to do so without union interference. Furthermore, recognition and de-recognition ballots under Schedule A1 are already subject to provisions prohibiting unfair practices whereby the Central Arbitration Committee can order that a ballot is re-run if an unfair practice claim is found to be well founded. To introduce a new voting method to statutory trade union ballots using Section 54 of the Employment Relations Act 2004, the Government must already consider that the new method would allow the ballot to meet the requirements under Section 54(12). Specifically, the Government must consider that those entitled to vote have an opportunity to do so, that votes are cast in secret and that the risk of any unfairness or malpractice is minimised. Therefore, safeguards are already provided for in Section 54(12)(c) that cover intimidation if it takes place in the workplace or elsewhere. The noble Lord’s amendment is therefore not required.

I thank my noble friend Lady O’Grady of Upper Holloway for reminding us of the outcome of the inquiry by Bruce Carr QC, as he was then, about the absence of intimidation within workplaces. It is important that we bear this in mind. The question was asked. It was tested by independent opinion and the proposition that underlies the spirit of these amendments was found to be wanting.

Amendment 248, also in the name of the noble Lord, Lord Sharpe of Epsom, would prevent the Secretary of State using the power in Section 54 to allow workplace balloting as a new means of voting in trade union ballots and elections. Unfortunately, the amendment fails to take into account the fact that workplace balloting is already an option for statutory trade union recognition and derecognition ballots. The existing legislation permits workplace ballots conducted by independent scrutineers appointed by the CAC. One wonders why this is deemed acceptable by the Front Bench opposite but other sorts of workplace balloting are not.

Furthermore, as I said earlier, any new voting methods introduced under Section 54 of the Employment Relations Act 2004 must enable a ballot to meet the requirements of Section 54(12). The Government are committed to updating our industrial relations framework and aligning it with modern working practices and technology. This includes allowing for modern and secure balloting for statutory trade union ballots.

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Critics may argue that these amendments would weaken worker protections, but the protection of rights must be balanced with responsibility for conduct. The right to take industrial action does not extend to the right to intimidate, harass or engage in destructive behaviour. Such conduct ultimately weakens the legitimacy of industrial action and undermines public support for legitimate grievances. These amendments respond to a genuine crisis where the balance has shifted so far towards protecting industrial action that legitimate business operations and public services are under constant threat. We have created a system where employers face legal jeopardy for reasonable operational decisions, where public safety can be compromised without legal recourse, and where undemocratic minorities can hold entire sectors hostage. I beg to move.

[Baroness Kramer (LD)]

My Lords, I speak to Amendment 251C through to Amendment 252, in the name of the noble Lord, Lord Sharpe. These amendments would introduce a wide range of limitations to the new right not to suffer detriment for participating in protected industrial action. The amendments seek to define and restrict the scope of protection, introducing exclusions based on business continuity, public safety, union membership status and compliance with employer instructions. They propose new requirements around compensation, such as proof of financial loss, statutory severity bans and caps on awards.

Although I understand the desire to ensure clarity and prevent misuse of these protections, I am concerned that, taken together, these amendments risk hollowing out the underlying right. They would place significant hurdles in the way of workers seeking redress and could undermine confidence in the fairness and accessibility of the system. I would be grateful if the Minister could clarify whether the Government support this overall direction of travel and how they intend to ensure that the core principle of protection from unfair treatment during lawful industrial action is preserved in practice.

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

My Lords, I thank the noble Baroness for her contribution, and I thank the noble Lord, Lord Sharpe of Epsom, for tabling these amendments. I ask noble Lords to bear with me as I respond to each of them.

I want to be clear about why this clause is required. Clause 73 inserts new Sections 236A to 236D into the Trade Union and Labour Relations (Consolidation) Act 1992. New Section 236A is required because the Supreme Court ruled in April 2024 that Section 146 of the 1992 Act is incompatible with Article 11 of the European Convention of Human Rights.

Amendments 251C, 251F, 251H and 251J are unnecessary as their purpose is already covered in existing legislation. In the case of Amendment 251C, Clause 73 already requires a ballot compliant with Section 226, as specified in Section 219(4) of the 1992 Act, and makes it clear that protection is limited to cases where the action is compliant. Furthermore, in the case of Amendment 251J, secondary action is already prohibited under Section 224 of the 1992 Act, and the new protection of Section 236A will not apply where the industrial action was unlawful secondary action.

With regard to Amendments 251F and 251H, Section 240 of the 1992 Act allows for criminal prosecution of those who intentionally and maliciously endanger life or cause serious injury to a person by going on strike. Furthermore, if an act of an employer is motivated primarily by health and safety concerns, not for the sole or main purpose of preventing or deterring the employee from taking protected industrial action or penalising them, they have a defence from detriment claims, and the tribunals will consider whether the employer’s act or failure to act constitutes detriment.

Amendments 251D and 252 seek to prejudge a full and open consultation on this issue by setting out circumstances in which the detriment protection will not apply. We will prescribe detriments in secondary legislation only once we have conducted a comprehensive consultation seeking views across the public, including those of workers, employers, trade unions and all other stakeholders.

With reference to Amendment 252, that protection from prescribed detriment applies only where the sole or main purpose of subjecting the worker to detriment is to prevent, deter or penalise the worker from taking protected industrial action; for example, if a worker is subjected to detriment solely or mainly because they have harassed or bullied non-striking workers, the protection will not apply. I can be clear that criminal law will continue to apply to pickets.

Amendment 251E would be an unnecessary limitation on the protections from detriment. The prohibitions that new Section 236A places on an employer are clear: the sole or main purpose of the action must be to deter or penalise industrial action, which would not apply in the case of genuine maintenance of critical operations. Amendment 251G would be an unreasonable restriction to apply to detriment protections. Non-union members have the right to participate in official protected industrial action and, where that is the case, must be afforded the same protections from detriment as union members.

Amendments 251L and 251N would place a burden on individuals to prove that they had suffered financial or economic loss as a result of detriment, and would limit the circumstances where they were eligible for compensation. These hurdles and limits would potentially deter them from engaging in industrial action, limiting compliance with the Supreme Court ruling and Article 11.

Amendments 251M and 251P seek to restrict compensation with regard to business deeds. I want to be clear that an employer’s action or failure to act in relation to prescribed detriments will be a legal obligation that cannot be breached proportionately, and there is no legitimate business interest defence for seeking to deter or penalise an employee for taking protected industrial action.

Amendment 251K seeks to establish bands of detriment severity of “minor”, “serious” and “extreme”, and would require the Secretary of State to specify maximum compensation limits for each, which tribunals would have to comply with. New Section 236D is already clear that employment tribunals must have regard to any loss sustained by a claimant that is attributable to the actions of, or failures to take action by, an employer. Therefore, tribunals will award compensation based on what the tribunal considers to be just and equitable and will be able to proportionately determine the amount of compensation, taking into account all the relevant circumstances. I hope I have reassured the noble Lord. I therefore ask him to withdraw Amendment 251C.

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[Baroness Lawlor (Con)]

My Lords, I support the amendments from my noble friends Lord Sharpe of Epsom and Lord Hunt of Wirral to require an impact assessment on the effect on the emergency services. That is proposed in Amendment 254, which seeks to insert proposed new subsection (4) to Clause 75; and in Amendment 255, on the ability of the services listed in the 1992 Act to provide minimum service levels with a new Section 75, requiring an impact assessment.

As noble Lords will remember, the Strikes (Minimum Service Levels) Act 2023 enabled the Secretary of State to set minimum levels of services in essential services, so that employers could give notices to trade unions that their employees must comply with Section 234B. Specified services included health, fire and rescue,

“decommissioning of nuclear installations and management of radioactive waste”

and border security. These are vital areas of the public services and, indeed, often incorporate private sector services too.

The noble Baronesses, Lady O’Grady and Lady Coffey, both pointed out that the Act was not drawn on, but it is my view that it acted as a leverage, as has already been pointed out. I support also what the noble Baroness, Lady Noakes, said: given time, the Act would have come into its own. It was not given time, partly because the Opposition, who were then in pole position to take over from the Conservatives at the next general election, made it clear that they would repeal it and fought tooth and nail against the Bill throughout the debates.

Clause 75, to repeal the Strikes (Minimum Service Levels) Act 2023 for minimum service levels in these sectors, will appear, as has been said, to many people in this country as an irresponsible act of Government. They see that, every time the Labour Opposition is about to come to power or has the chance of coming to power, the trade unions ramp up their campaign, often calling strikes and causing chaos in the public services—some emergency services included—thus providing the Labour Government with the springboard to measures such as the present one, and indeed the present clause.

However, even if it served as leverage, the chaos was mitigated as a result of the 2023 Act, with schools kept open, rail services running reliably, if not quite as frequently, and hospital treatments taking place. Given the militancy of the unionised workforce mainly in the public sector, employers there may not particularly relish serving workplace notices, but there may be an incentive, and it may be necessary to give employers in the public sector an incentive or an instruction to do so. Right now, the issue we and the public face is, will we have our emergency and essential public services for which the country as a whole pays handsomely through its taxes for such services? Will people have a right to the benefit of the service they pay for?

Being an employer is not an easy job; it is a hard one: one of constant interaction and agreement with employees on whom the success of any enterprise depends, be it a business or charity or the public sector. It may be necessary to have such a requirement, as was stipulated under the Strikes (Minimum Service Levels) Act 2023, to bring employers who are not minded to go that extra mile to find an agreement to some dispute. It might be necessary to have that if there is no other incentive in place, and very often, in publicly paid for services, there is no incentive for an employer to go that extra mile.

Moreover, the prevalence of industrial action, with the disproportionate impact on the public sector and emergency services, must owe something—and does, in my view—to the prevalence of a proportionately large group of the public sector being unionised: almost 4 million, 3.9 million, in 2025 and 3.8 million in 2024, of the 6.4 million trade unionists.

This figure indicates that we are dealing with a potentially militant public sector union membership of around 50% who can hold our country to ransom if there is not a requirement for minimum service levels. This is not a very fair deal for employers who may want that extra muscle which the law has given to reach some agreement, and for the employees to reach an agreement also.

By inserting a requirement for an impact assessment, we shall at least be encouraging information to be supplied to taxpayers and the public, so they too can lend their voice to the need to mitigate the damage done by the lack of availability of treatment in hospitals and the damage done to children’s education, to border controls and to fire services, not to mention basic rail travel to go to work and earn a living, which is perpetuated by Clause 75. I therefore support my noble friend’s amendments, and I urge the Government, even if they are determined to bring forward this unnecessary clause, to allow the public to judge the impact by producing an impact assessment.

[Baroness Kramer (LD)]

My Lords, I shall speak briefly to this group of amendments, which introduce various review provisions linked to the operation and impact of measures in the Bill. Amendments 254 and 255, in the names of the noble Lords, Lord Sharpe and Lord Hunt, seek to ensure that the consequences of key provisions, particularly around the repeal of the Strikes (Minimum Service Levels) Act and the content of Clause 75, are properly assessed after implementation. While post-legislative scrutiny can be helpful, there is a balance to be struck between evaluation and reopening the substance of the reforms.

I shall also speak to Amendment 258, tabled by my noble friend Lord Fox, who is unfortunately unable to be here today. His amendment would require a review of the impact of Part 4 on small and medium-sized enterprises within six months of Royal Assent. I am sure he will be delighted by the number of voices that have joined in support of that approach today, because this is an important proposal. Small and medium-sized businesses do not have the legal departments or HR infrastructure that larger organisations enjoy. Clarity, simplicity and practical support are essential if those firms are to understand and comply with new duties under employment law, particularly where industrial relations are concerned. This amendment would help to ensure that legislation worked in practice for the full range of employees it affected, and I hope that the Minister will give it due consideration.