Employment Rights Bill

Debate between Lord Berkeley and Lord Hendy

Report stage
Wednesday 23rd July 2025 Lords Chamber

[Lord Hendy (Lab)]

My Lords, no one hearing the speeches of the noble Lords who have spoken could be other than sympathetic to the objects of the amendments in this group.

However, although it may seem churlish, I have a point on the definition of freelancers in Amendment 161. It is not a technical point; it is about the fact that another categorisation of workers would be added to the already complex pattern of the status of workers. I know that the Government intend to conduct a comprehensive review of the status of workers later, and the issue of freelancers will no doubt be addressed in that.

One issue affecting freelancers, as defined in the amendment, is the use of substitution clauses in workers’ contracts. Two points arise here; my noble friend Lord Berkeley will say a few words about one, and I will deal with the other. The issue is that the insertion of substitution clauses by employers can be used to deny self-employed workers, such as freelancers, all employment rights. The particular value to some employers of this device was established in the Deliveroo case in the Supreme Court in 2023, in which I had the honour, or perhaps the misfortune, of representing the union representing the workers.

The issue is that self-employed workers are by definition not employees, and so they do not have the rights of employees. But they could be what lawyers call limb (b) workers, with limited employment rights. In order to fall into that definition, such workers must undertake

“to do or perform personally any work or services”.

The delivery companies have realised that this condition could be defeated by the inclusion of a right to substitute on the part of the worker. Clearly, a legal provision that such a clause should not be a factor in the determination of personal service is needed, but doubtless that will be a matter for consideration in the Government’s review.

[Lord Berkeley (Lab)]

My Lords, I will just add a few words to my noble friend’s contribution. This little item that we are discussing came out of a debate we had in Committee when we established that there was a link between the small boats with what we might call illegal immigrants coming across the channel and the delivery vehicles, mostly bicycles with trailers and mostly in London, but in other places as well. There was strong evidence that the riders do not have permission to work in this country and have probably not passed any of the tests necessary for what they are doing. We all know what the problem is with these bicycles and trailers going around London: they seem to forget that there are things such as traffic lights and rules about keeping to the left.

Ministers were sympathetic, and we had a very useful meeting with the Ministers, for which I thank them. The real problem is that once one of these drivers has a job at one of the companies my noble friend mentioned, they can contact their brothers, sisters and cousins on the continent and say, “Why don’t you come across too? You can share the job”, which sounds fine. They spend the money and come across the channel, hopefully still safe and alive.

Once two of them are trying to do the same job as if one person, it gets very difficult. There is no easy solution to this, apart from—we had a very useful meeting with the Minister on this—adding the word “substitution” to many of the issues that noble Lords in the creative sector spoke about so well earlier. They are often substituting for their brothers and cousins but are still working without the necessary insurance, certification or anything else. I hope that when my noble friend the Minister comes to respond, she will look favourably on the idea of having a wider interpretation of the type of work we are talking about. Apart from people not paying their tax and everything else, hopefully there are not going be too many road accidents, but at the moment it is a little dubious.

I am grateful to other noble Lords who have listened to something that is 100 miles away from creative, but it is just as important. I look forward to the Minister’s response.

Seafarers’ Wages Bill [HL]

Debate between Lord Berkeley and Lord Hendy

Wednesday 26th October 2022 Lords Chamber

[Lord Berkeley (Lab)]

My Lords, I tabled Amendment 10, which is designed to do exactly the same thing as the amendments from the noble Baroness. All I can say is that I entirely agree with what she said. It is really not acceptable that the Government can instruct or direct ports to do something, direct them not to do something, and then basically fine them, take them to court or whatever if they do not do what they say. It is all wrong and I support the noble Baroness’s statement. I hope the Minister will consider this and possibly come back with changes, as she did with the earlier recommendations.

[Lord Hendy (Lab)]

My Lords, as a member of the Delegated Powers and Regulatory Reform Committee, I support all these amendments. The Government accepted the committee’s recommendation in relation to Clause 3 and introduced Amendment 3; they should also concede Amendments 6 to 9, and preferably Amendment 10.

The problem is that the Government have made harbours the enforcers of the Bill, in particular by way of imposing surcharges. That reveals the flawed structure of the legislation. The arguments are by now familiar so I will outline only three of them.

First, the national minimum wage equivalent for seafarers should not be enforced by harbours, some of which are wholly conflicted since they share ownership with the shipping lines they are to police. I do not understand how the noble Baroness could say in her letter to us of 21 October:

“The Government is confident that there are no conflicts of interest.”


Instead, the declaration of compliance should be received by, and the prime enforcement body should be, a state authority. The obvious candidate is the MCA.

Secondly, there should have been provision for seafarers or their unions to enforce the national minimum wage equivalent, not least by making the entitlement to it contractual.

Thirdly and lastly, enforcement by way of surcharge is, with respect, inappropriate. It is a penalty and the noble Baroness’s letter to us, of 21 October, says of surcharges that

“Rather than being a punitive measure, its purpose is to make it not worthwhile for an operator to underpay their seafarers.”


Of course that is so, but then there is no distinction of purpose between a fine and a surcharge. One suspects that the real reason that a surcharge is preferred to a fine is that it avoids the stigma of a criminal sanction, which is, if that is true, an unattractive justification given that we are all here seeking to prevent repetition of the disgraceful behaviour of companies such as P&O Ferries. Such companies should be stigmatised by criminal prosecution if they underpay their seafarers.

Seafarers’ Wages Bill [HL]

Debate between Lord Berkeley and Lord Hendy

Wednesday 12th October 2022 Grand Committee

[Lord Berkeley (Lab)]

My Lords, I will speak to Amendments 7 and 9 in my name, which cover the same ground that the noble Baroness, Lady Scott, outlined so well. I still get confused—I know that some associations are also confused—as to whether it is one ferry or a service. As the noble Baroness said, how do you define a service? For example, does it matter where the ship is registered? I do not think it does, but it would be interesting to hear the Minister’s response. Where the contract of employment with the seafarers is concerned, does that make any difference?

I suppose my purpose in putting down the amendment to change the number of visits to a harbour—or the harbour—from 120 to 50 was also to probe whether it matters which harbour it is and what a harbour is. I know that this Bill is designed to support ferry workers, which of course I support, but a lot of other ships go around the coast. Coasters, for one, move china clay, cement, aggregates and other things. I am a former member of the harbour board of the port of Fowey in Cornwall. These ships go backwards and forwards; their crew are probably employed in UK contracts but they might not be. Are they included? If not, should they be?

Ditto with cruise ships. We read about many employees on cruise ships not being well paid. Most cruise ships probably move internationally; they certainly do not come to a particular port even 50 times a year. On the other hand, some smaller ones go around more often. Why should those employees not be protected in the same way as ferry operators? I asked one or two people why they thought it was so important to protect ferry operators. The answer was, “Well, they’re a particular type of crew who usually go home after their shift”. That is an odd definition. I am sure that it is not true when you look at the services to Spain and up to Scandinavia; they certainly do not go home every night. It is important that the Minister sets out the limits of this clause, why it is that way and whether it relates to the ships or the crews.

In relation to ships going across the channel—P&O might have three or four going across; I am sure that the crew get moved from ship to ship—is it a matter of making sure that the ship or the captain produces the documents? How is it recorded that crews who have gone from one ship one week on to another ship another week are covered by this Bill? It is a pretty complicated solution, but it is terribly important for people who may be on one side of the fence or the other. I am sure the Minister can give me a wonderful answer on this; if not, she can write to me.

[Lord Hendy (Lab)]

My Lords, I will speak to Amendment 8, which is simply an elaboration of the points that my noble friend Lord Berkeley has already made. The proposal here is to delete “the harbour” and insert “a harbour”. What lies behind that is catching those vessels that might do what I understand is referred to as harbour-hopping, where, in order to decrease the frequency with which they are recorded in any particular port, they go to a nearby port every so often to reduce the number.

My second point, which my noble friend Lord Berkeley and I have addressed, and my noble friend Lord Tunnicliffe has a slight variant on, is whether 120 occasions a year is far too high. It will exclude a lot of vessels that do weekly ferrying, which we would want to catch. If I may speak for my noble friend Lord Berkeley as well as myself, the reason we think it should be 50 is that, quite often, a ship may be serviced for a couple of weeks a year and it may not therefore achieve the full 52 occasions, even if it is running a weekly service.