Employment Rights Bill

Baroness Smith of Malvern Excerpts

Committee stage
Wednesday 18th June 2025 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, that was a most interesting exchange, and I thank the noble Baroness, Lady Chakrabarti, and my noble friend Lord Jackson for it. As I have said many times, I am not a lawyer, but as a broader observation, there seems to be a slight philosophical discussion developing this evening between intervention and initiation when it comes to various state interventions in certain areas of law.

I have no doubt at all that the intention behind the noble Baroness’s amendment is to strengthen the enforcement of equal pay laws. As she rightly says, we all support that objective, but we feel that this particular proposal is somewhat flawed, not least because we just do not think it will work. At its core, the amendment risks conflating pay disparity with unlawful discrimination. It assumes that if a pay gap exists, there must therefore be wrongdoing. As the noble Baroness, Lady Chakrabarti, acknowledged, it is not that simple, because pay disparities can and often do arise for entirely legitimate reasons, such as differences in experience or qualifications, performance geography or even negotiated terms, to my noble friend Lord Jackson’s point. To suggest that a mere statistical difference is indicative of discrimination is to abandon the nuanced legal framework carefully set out in the Equality Act 2010. While paying a great deal of respect to the arguments—and there is considerable merit in this—we cannot support this amendment.

[The Minister of State, Office for Equality and Opportunity (Baroness Smith of Malvern) (Lab)]

My Lords, like my noble friend Lady Chakrabarti, I am also an occasional visitor to this Committee, but I am very pleased to be here this evening to address her Amendment 275. I thank her for recognising the engagement there has been with the Government and others on this up to this point.

Certainly, the Government want to make very clear that we share the broad aims behind this amendment. Over 50 years after the Equal Pay Act 1970 and 15 years after the Equality Act 2010, it is clear that equal pay has not yet been achieved. That is why the Government have committed to strengthen the equal pay regime and end pay discrimination. I share the concerns of my noble friend in identifying the challenge of enforcement in this case. There is more we can do to ensure that the onus does not fall only on women to find out whether they are receiving the same pay as their male colleagues for equal work and to take enforcement action against employers in the case of a breach.

It is possible to envisage, in relation to the points made by the noble Lord, Lord Jackson, a system in which you have both the contractual arrangement and the ability to take individual action as is the case now and an enforcement body that supports people doing that in general terms and identifies thematic or consistent ways in which equal pay is being breached. That is why the Government are committed to establishing an equal pay regulatory and enforcement unit with the involvement of trade unions. As part of this, we will carefully consider how we can improve the enforcement of the equal pay scheme.

On 7 April we launched a call for evidence on this issue and wider equality law to ensure that any steps we take will lead to a meaningful strengthening of protections against pay discrimination—an objective that I am sure my noble friend will share. It is important that the Government are able to develop these changes in partnership with business, trade unions and civil society to ensure that the law works for everybody. For that reason, I hope my noble friend will recognise that this will be a more appropriate process through which to address these issues. As she suggests, we will give these areas very close consideration in advance of the equality, race and disability Bill.

In relation to some of the specific points my noble friend raises about the way this might operate, we certainly recognise the benefits that can arise from government departments, including HMRC, working together. HMRC already has a number of joint working and data-sharing arrangements with departments and agencies. The Government are therefore not closed in principle to establishing new data-sharing arrangements with regulatory authorities where this can support their regulatory functions.

My noble friend made a very interesting point about the use of AI. It would not be sufficient simply to compare the pay of different people working within a workplace unless you could also have some analysis of how that applied to the nature of the work and whether that was work of equal value. It may well be that advances in technology, including AI, would be a way in which we could support that monitoring.

Policy is at a very formative stage. My officials will explore a wide range of options to improve the enforcement of equal pay rights. While taking great care to ensure that safeguards are put in place in relation to personal data, particularly where that relates to discrimination and protected characteristics, I suspect the sort of description that she gave of the contribution of AI is very much part of what, across government, we are wanting to see in terms of its use in future.

We are sympathetic to the ultimate objectives of my noble friend’s amendment. I hope she recognises that and the progress that we intend to make on that pledge to deliver stronger enforcement mechanisms and, in particular, an equal pay regulatory and enforcement unit. With that assurance, I hope she feels able to withdraw her amendment.

[Baroness Chakrabarti (Lab)]

My apologies to the Committee. It has of course been 75 years since the European Convention on Human Rights and 50 years since equal pay legislation—forgive that rather glaring howler. I am grateful to the noble Lord, Lord Jackson, in particular, and to my noble friend the Minister, whose officials have been very generous and thoughtful with their time. I look forward to watching their thinking develop on this forthcoming legislation. With that, I beg leave to withdraw.

Employment Rights Bill

Baroness Smith of Malvern Excerpts

Committee stage
Thursday 5th June 2025 Lords Chamber

We all, I think, welcome that the Minister has decided to respond to this debate herself. We very much look forward to her reply.

[The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)]

What can I say? It is an utter pleasure to be here to respond to this debate. I was not aware that I had a choice; nevertheless, I am very pleased to make my first appearance in Committee on this Bill, which I see that noble Lords have been enjoying for several days already.

I am very pleased to consider these amendments on such an important provision in the Bill. Establishing the school support staff negotiating body is an important part of this Government’s plan to make work pay and of the opportunity mission. As several noble Lords have already identified, the nearly 800,000 support staff in our schools are playing a vital role in children’s education and development, are supporting teaching staff and parents, and are ensuring that our schools can run effectively. Despite their contribution, there is an acute recruitment and retention challenge. It is that issue that the SSSNB seeks to remedy and improve, along with providing a voice for those staff in negotiations.

We have heard from my noble friend Lord Prentis that a previous version of the SSSNB was established in 2009, but it was abolished very soon afterwards by the coalition Government when they came to power. Despite the arguments made by noble Lords opposite, in the 14 years between then and the opportunity now in this legislation, the previous Government did not choose to set up a framework to reduce complexity around the negotiation of terms and conditions for school support staff. They did not choose to make it more straightforward for schools. They stuck with the complexity inherent in the current negotiating arrangements through the NJC, which do not give a voice to the particular issues relating to school support staff that our proposals will. That is why the SSSNB, which is being established in this Bill, has a remit designed to reflect the needs of all state-funded schools in England today, bringing together employer and employee representatives with an independent chair to negotiate on pay and conditions and to advise on training and career progression.

As my noble friend Lord Prentis said, that enables the voice of those involved in this work to be represented both in negotiations about pay and conditions and in important considerations on how to make these roles something that people will want to come and do, will be trained to be as effective as possible in doing, and will want to carry on doing, staying in our schools doing their enormously important roles.

In thanking the noble Baronesses, Lady Coffey and Lady Barran, for tabling Amendments 151, 174, 175 and 180, I hope I can respond and provide some assurance on those. First, on Amendment 175, introduced by the noble Baroness, Lady Coffey, on the role of the TUC in this legislation, it will be the case that the SSSNB will, as is clear in the legislation, allow representatives of the employers and representatives of the employees to engage in these negotiations. The Secretary of State will consult on regulations about precisely who those representatives should be, and that will be named then in secondary legislation.

It does not seem wrong to me—in fact, it seems quite sensible—when thinking about who from the trade union side should represent employees, that the TUC, which, as the noble Lord, Lord Hunt, said, is the umbrella body for trade unions, should be consulted about which would be the appropriate trade union representatives for school support staff. It is for that reason that we have included this within the legislation: to enable the Secretary of State to make an informed decision when deciding which unions should represent school support staff on the body.

Turning to Amendment 151, and several of the points made by the noble Baroness, Lady Barran, about the nature, complexity and coverage of the SSSNB, we are, in this legislation, creating a new system for support staff in 2025. We are not trying to amend an existing one. It is appropriate, therefore, that we consider the coverage of that board in the light of the current make-up of the school system. Roughly half of the 22,000 state-funded schools in England are academies, compared to around 200 when the original SSSNB was set up in 2009. Academies are a significant element of the state school system now, and it is therefore right that they should be included in the statutory remit of the SSSNB in the same way as maintained schools to ensure there is greater national consistency.

Our intention, however, is for the SSSNB to agree floors, not ceilings, for pay and conditions. Beyond minimum agreements reached by the SSSNB—which, by the way, I would have thought would actually make it easier, not more complicated, for head teachers, particularly those in small schools, to understand the context in which they were operating when considering the employment of school support staff—all schools will be able to innovate with pay and conditions to attract and retain the best workforce that they need for our children. The noble Lord, Lord Agnew, gave us some good examples of the ways in which schools are able to innovate and support the school support staff in his academy chain. Those things are admirable. They are facilitated by this Bill; they are not prevented by it. What is more, I am not quite sure that the noble Baroness, Lady Barran, meant this, but there was a sort of implication that what was being proposed here was a body that would direct schools and head teachers as to whom and what they could employ with respect to support staff. That is not the intention of this body: it will remain the responsibility of the head teachers to determine whom they want in their team to meet the objectives that they have set. Nothing will mandate whom or what should be employed.

So, for all those reasons, we do not need to see the provisions that have been proposed in Amendment 151, which would in fact run against the idea that there should be a national, consistent approach to our school support staff. We already have the ability for academies to innovate, but we underpin that with a floor and a consistent national approach, informed by the voices of those who are employing school support staff and those who are representing their voice to enable it to be much more coherent than is the case at the moment.

On Amendment 174, the costs associated with changes to the constitution which are covered in this amendment are very unlikely to impact on the education sector. There will be limited administrative expenses and fees in setting up the negotiating board, but, for the reasons that I have already outlined, if anything, it is actually likely to make it more straightforward for schools to understand the scope—the pay levels that they would be offering to school support staff. So I do not think that it is necessary for the Secretary of State to publish an impact assessment on the constitutional arrangements. There will be the consultation that I have already referenced with respect to the arrangements and the process for setting up those arrangements. We will work hard with stakeholders to ensure that the arrangements work for all schools, including academies, and provide all schools with a core pay and conditions offer in doing that consultation.

I think I have responded to the point about costs, although I will come to the broader point that is made in Amendment 180, which is about assessing the cost implications of agreements reached by the SSSNB on pay and conditions. It will, of course, be important for the Department for Education to be able to assess the implications of recommendations made by the negotiating body prior to the Secretary of State ratifying any agreements. The legislation also gives the Secretary of State the power to refer matters back to the SSSNB, or to make regulations otherwise than in terms of the agreement if agreements reached are not practicable. That is to ensure consideration of the affordability of agreements reached for the education sector. At that point, of course, changes to terms and conditions would be implemented through the use of statutory instruments.

Just to re-emphasise the point that I made about school employers deciding who they employ, there are also powers in legislation to allow the Government to determine, after consultation, which school employees come within the remit of the SSSNB. Yes, this is a complex area, and there may be some categories of school support staff whom it is not appropriate to include within this body, but that will be determined through a process of consultation and set down in the regulations that I previously referred to.

I hope I have covered, and provided some reassurance in relation to, Amendment 180. This is a reasonable balance between enabling the voice and the expertise of the employers and the employees of school support staff to be able, through this body, to reach agreements around pay and conditions, to be put to the Secretary of State, and to do that important work around advising on improvements to training, development—all the types of things that are likely to lead to even more effective school support staff, and therefore even better support for our children, our schools and the teachers that these staff play such an important role in supporting.

I hope, on the basis of those assurances, that the noble Baroness will feel able to withdraw her amendment.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I ought to clarify my comments on yachts. I have had a yacht of my own, but it was 21 feet long and I was referring to yachts that are 200 to 400 feet long. Sorry about that.

[Baroness Smith of Malvern (Lab)]

I am desperately searching for the note in my folder on yachts. I may have to write to the noble Baroness on that issue later.

I thank my noble friend Lord Hendy for his introduction to these amendments. As others have said, it was an interesting and important history of the progress that has been made in this country through a recognition of the strength of the collective voice of workers represented through the trade union movement, which is, of course, the basis of our party on this side of the House. Although I will not be able to go as far as my noble friend would want me to go in this, I hope I can reassure him that I think these proposals for the SSSNB make considerable progress in recognising the need for the voice of school support staff to be properly heard in bargaining about pay and conditions and improving the training and development options for those staff.

I know my noble friend Lord Hendy has had the opportunity to meet with my noble friend Lady Jones to talk about these principles. I hope he recognises, as I certainly do, the phenomenal work that she and other members of the team have done in this House in taking forward this piece of important legislation for the Government and the difference it is making to the rights of workers across this country. Those of us on this side of the House are proud of this piece of legislation and the work that has gone into it.

I can also reassure my noble friend that this Government support the work of the ILO, value its role in upholding and enhancing workers’ rights globally and remain committed to upholding international standards. In fact, the UK is in full compliance with all our international obligations on collective bargaining.

I turn to the SSSNB and the associated amendments in this group. I know my noble friend is here for the other elements of negotiating bodies that my noble friend Lord Hendy referenced, but first I shall speak to Amendments 152, 154 to 158, 161 and 173 to 179, which relate to collective bargaining, the role of the Secretary of State and concerns about the remit of the SSSNB.

The existing remit is broad. It covers the areas that will help to address the recruitment and retention challenges that state-funded schools are facing for support staff. As it is a negotiating body, employee and employer representatives will be able to meaningfully negotiate on pay and conditions as well as advise on training and career progression. As I spelt out in the previous group of amendments, this is a major step forward in the process for supporting our school support staff, who play such an important role in our schools.

As it is a statutory body, it is essential that agreements reached by the SSSNB can be imposed in contracts only through ratification by the Secretary of State, and that the interests of the Secretary of State are represented on the body with a non-voting representative. I agree with the noble Baroness, Lady Barran, that the current wording provides the appropriate specificity on the remit for this body, appropriately involving the Secretary of State in the statutory role of the body but making a major step forward in enabling employees and employer representatives to negotiate on those areas.

I turn to Amendments 153, 159, 160, 162, 167 and 170, which relate to those who work under a contract that is not a contract of employment—in other words, to the remit of the employees covered by this body. The vast majority of school support staff are employed by local authorities, governing bodies and academy trusts as employees. The remit for employees is consistent with the approach taken in the 2009 legislation that first established the SSSNB and the current remit of the NJC. I hope that answers the question asked by the noble Baroness, Lady Barran, about the definition. We are content that the policy intent of the SSSNB provisions is met through the current remit, so the amendments are not required. They would broaden those under the auspices of the SSSNB in a way that would distort its role and responsibility, and they would introduce the sort of complexity that other noble Lords have talked about.

The remainder of the amendments in this group—Amendments 163 to 166, 168, 169, 171 and 172—relate to the protection of more favourable terms in staff contracts. As drafted, the Bill does not require regulations ratifying agreements of the SSSNB to impose limits on the terms and conditions under which school support staff can be employed. The intention is for support staff in all state-funded schools in England to benefit from a core pay and conditions offer, while providing the flexibility to respond to local circumstances above minimum agreements reached, and with more favourable pay and conditions for individuals protected.

We are taking concerns about the protection of individuals and room for innovation seriously. We will be consulting on the remit of the SSSNB and calling for evidence on terms and conditions in the summer. I therefore have some sympathy with those who might express concerns about whether there is sufficient protection for individuals, and I hope we will be able to clarify that.

I will not be able to go as far as my noble friend Lord Hendy asks the Government to go in his amendments, but I hope he will recognise that, in line with the progress of the collective representation of workers that he identified in his speech, this development under this Government represents a considerable improvement in the position of our vital school support staff. I hope that, on that basis, he will feel able to withdraw his amendment.

[Lord Hendy (Lab)]

My Lords, I am most grateful to the noble Baroness, Lady Jones of Moulsecoomb, for her fulsome support of the amendments.

I am of course shocked that the noble Baroness, Lady Barran, and I have reached a point of disagreement, and will make one or two points arising from what she said. She thinks that I was wrong to refer to zero-hours contracts. Of course, I accept what she said, that there presently are no zero-hours contracts in the school sector, but, as I am sure she is aware, there are zero-hours contracts in the university sector, and the fear is that they might then be introduced into the school sector.

The noble Baroness was worried about the reference to non-employees—that is, self-employed workers. Again, the problem is not so much the existing situation but fear of the future. The self-employed sector now has 5 million workers, who, on average, earn a lot less than employed workers. It is a growing sector, and the fear is that employers will resort more to the device of self-employment to avoid the consequences of employment.

I am grateful to the noble Lord, Lord Sharpe of Epsom, for his thoughtful contributions. He said that he thought the inclusion of the self-employed would bring ambiguity and be unworkable, but I respectfully disagree. The point is this: if people are doing similar work but with a different legal status, similar terms should apply to them. If there are few people, or none, in that category, I cannot imagine for a moment that the negotiating body, unions or employers will wish to say anything about it. What I am suggesting by enlarging the remit of the bodies is not that they should be compelled to negotiate all the matters under Section 178, but that it is an option open to them if those parties feel that it is profitable for them to negotiate those things.

The noble Baroness, Lady Barran, was uncomfortable with my opposition to the Minister’s power to override agreements, or indeed disagreements, in the negotiating body. I point out that, in truly voluntary and free collective bargaining, it is always possible to have tripartite collective bargaining between the Government, employers and unions—but that is not what this body is. This body is bipartite, but with the addition of third parties and the power in the Minister to override any agreement that is reached. That does not seem to be compatible with proper collective bargaining.

I know your Lordships want to move on, so I will not deal with any more detail, but will make just one more point. The noble Lord, Lord Sharpe, was against the inclusion of dispute resolution procedures, including arbitration. I make the point again that the purpose is not to impose this on the parties but to enable them to choose their own means of resolving disputes—whether that is conciliation, arbitration or some other means—and not to leave it to the Minister.

I am very grateful to my noble friend Lady Smith of Malvern for her thoughtful and full response. She is right, of course. I do not think she goes as far as I would like her to, but I understand the reasons she does not. I agree that what is proposed in the Bill for the SSSNB is a “considerable improvement”, to use her words, on what exists. I accept too that it is a step on the road to proper collective bargaining in due course. I am very grateful for the two meetings I had with my noble friend Lady Jones of Whitchurch. I was honoured and grateful to be allowed to spend time discussing my concerns with her. On that basis, I am very happy to withdraw my amendment.