Employment Rights Bill

Lord Collins of Highbury Excerpts

Consideration of Commons amendments and / or reasons
Monday 17th November 2025 Lords Chamber

120E: Schedule 3, page 191, line 27, at end insert—
“(5C) Before making the first regulations to be made in reliance on subsection (5A), the Secretary of State must consult such persons as the Secretary of State considers appropriate.””

[Lord in Waiting/Government Whip (Lord Collins of Highbury) (Lab)]

My Lords, I beg to move Motion B and I will also speak to Motions E, E1, F and F1. In this group, we are debating amendments relating to unfair dismissal, trade union industrial action, ballots and political funds. These are areas clearly linked to our manifesto commitments, which the Government have an electoral mandate to deliver. I thank all Members of the House for their engagement on these areas throughout the passage of the Bill. We have listened carefully to the concerns raised and in response, wherever possible, we are offering amendments in lieu that we believe strike a fair and workable compromise to the amendments made to the Bill. It may not be the rabbit that the noble Lord, Lord Fox, expected, but I would like to make it clear to the House that none of the amendments tabled by the Government will compromise the fundamental principles of the Bill, nor their intended impact, which is, I repeat, a commitment made in our manifesto.

On Motion B, relating to Amendments 120C, 120D and 120E tabled by the Government in the other place, we remain committed to delivering unfair dismissal protections, ensuring that around 9 million employees who have worked for their employer for less than two years are protected from being arbitrarily fired—that is the principle we are addressing. The Government have listened to stakeholders and tabled an amendment in lieu in the other place which ensures that the Government consult on key aspects of the framework. This will ensure that there is direct input from both employers and employees, enabling businesses to shape the legislation and ensure that it is practical and proportional.

To reiterate what was said in the other place, day-one protection from unfair dismissal will not remove the ability of businesses to dismiss people who cannot do their job or pass a probation period, but it will tackle cases of unfair dismissal in which hard-working employees are sacked without good reason. That is what this Bill is about. A six-month qualifying period threshold still leaves employees exposed to arbitrarily being fired during the early months of their new job.

As we have said from the start, the implementation of day-one unfair dismissal rights will be done with a light touch. There is a power in the Bill to modify the test when employers can fairly dismiss employees during the statutory probationary period for specific reasons related to performance and suitability. The Government will consult on our approach to ensure it has maximum flexibility so that the new framework works effectively for employers and employees in terms of the cost of its implementation and operation.

Motion F and Amendment 62C, tabled by the Government in the other place, relate to the 50% turnout threshold for industrial action ballots. As the period of disruption between 2022 and 2024 has shown, unnecessary red tape on union activity works against the core negotiation and dispute resolution that we all seek. Bureaucratic hurdles do not prevent strike action; they only make it harder for unions to engage in the bargaining that settles disputes—and that is our commitment in this Bill in terms of ensuring the promotion of growth. The repeal of the 50% turnout threshold also aligns union democracy with other democratic processes, such as parliamentary votes and local elections, and we should not forget that.

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[Baroness Butler-Sloss (CB)]

My Lords, I cannot resist telling the House the following. Immediately after secretarial college, I had a job for a fortnight. On the last day, my employer said to me, “What are you really wanting to do?”, and I said, “Be a barrister”. He replied, “Thank goodness. You would never make a career as a secretary”.

[Lord Collins of Highbury (Lab)]

We have had many days of debate in Committee and on Report, so I want to bring matters to a conclusion. Our changes will not prevent fair dismissal. The Government will ensure that employers can operate a statutory probationary period to assess new hires. That is exactly what will be in the Bill and what we will consult on. We are committed to consulting on the light-touch approach to the probationary period, and we have made that clear at each stage of the Bill.

Our reforms to the labour market are critical for growth, because low productivity is our biggest problem in this country. How do we ensure that we motivate good employers? I have correspondence from think tanks, such as the Tony Blair Institute, on protecting workers from unfair dismissal from day one of employment. They say that employers could respond to this by improving their people management—a vital ingredient to productivity—which could boost labour productivity. This must be one of the benefits that comes from job mobility. These are issues that we discussed in Committee, so I do not want to go on.

The noble and right reverend Lord, Lord Sentamu, raised the issue of convictions. I have repeatedly said that, currently, having a spent conviction is not a proper ground on which someone can be dismissed, unless it is from one of the roles listed in the Rehabilitation of Offenders Act 1974. The two-year qualifying period applies, making it an unfair dismissal claim in those circumstances, which is what the Conservatives have put.

I appreciate, as I said to the noble Lord opposite before, that the Conservatives have been on a journey from day-one rights to six months, 12 months and two years—and they are now back to six months. I urge them to think about going that one step further. Most employment law has been subject to those statutory instruments and codes of practice, because we do need to respond to them. It is incredibly complicated, and we cannot simply put it in the Bill.

The impact assessment is there. If nothing else happens then of course there will be a danger, but the point I am making is that this is about creating a fairer and better workforce, where we encourage employers to set the best practice so that we have a situation where productivity is increased. What are we afraid of? I believe that no one in this Chamber supports unfair dismissal. We are talking about is ensuring that everyone who is employed can have that basic human right. Therefore, it is absolutely important.

The whole point—I will repeat what I said to the noble Lord, Lord Sharpe—is that, as we have said from the start, the implementation will be done with a light touch. There will be a power in the Bill to modify the test for when employers can fairly dismiss employees during the statutory probationary period. In response to all the issues that noble Lords raised in Committee and on Report—such as whether we are getting rid of the probationary period or, as the noble and learned Baroness, Lady Butler-Sloss, asked, whether we are inhibiting employers—the answer is no; we just want it done properly and fairly. That is not an unreasonable demand in this modern age.

I say to the noble Lord, Lord Sharpe, that there has indeed been a burden on the tribunal system because of unfair dismissals, as we have seen the cost of that. We recognise the volume of cases going to both ACAS and the employment tribunal, and the Government will extend the ACAS early conciliation time from six weeks to 12 weeks from 1 December, to allow it to manage and deal with the demand for early conciliation services. DPT is also providing additional financing immediately to recruit 29 additional conciliators, ensuring that ACAS can deal with that. Therefore, we are responding to those issues.

The BMA strike ballot was under the conditions that the noble Lord talked about, but that has not stopped the dispute. What will stop it is having proper negotiations, and that is what the Health Minister is focused on ensuring happens. Legislating to somehow undermine ballots is not the answer. We want to ensure that unions are representative and that their ballots are too. We want to ensure that they have a modern way of balloting, to ensure that we increase participation. That will be the key to future fair and open collective bargaining.

I turn to the amendment from the noble Lord, Lord Burns, on political funds. He knows—I have incredibly strongly made this point to him—that a trade union is not a company and is not offering services. It is a democratic body. There are collective decisions. If a trade union makes a resolution at its conference to support X or Y policy, that is the collective decision. People can opt out of that collective decision by leaving the trade union—and many do. If a union starts spouting things that are not representative of its members, then the members will walk. It is not compulsory to be a member of a trade union. However, it is a collective body making collective decisions.

The noble Lord said, “We want to avoid pendulum swings”. I admire the work that he did on his committee, which ensured that there was a soft landing for a decision made by the then Government in 2016 to break a consensus that had been in existence from 1945. We are trying to return to that consensus, in order to recognise that trade unions are an important part of our democracy. I have said before that the most important ingredient of a healthy democracy is a vibrant civil society. We all need to be challenged, and that is what this is about—collective decisions.

Whether the noble Lord thinks so or not, the fact is that his current amendment basically maintains the processes of 2016. I have engaged in discussions with him. I think most trade union leaders recognise that the world has changed. When I first joined a trade union, in the early 1970s, it required us to write a letter. The only information about contracting out was contained in the rulebook. Not many people read the rulebook. We now have online facilities—email—and the possibility of someone exercising their right to opt out. Of course, the reasons for opting out are not just political; they can be religious. That has been part of the consensus since 1945.

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72C: Clause 59, page 87, line 10, after “case,” insert “the earlier of—
(i) a day specified in, or determined in accordance with, the rules of the union, and
(ii)”

[Lord Collins of Highbury (Lab)]

My Lords, I have already spoken to Motion E, and I beg to move.

Motion E1 (as an amendment to Motion E)

Moved by

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62C: Clause 156, page 151, line 6, at end insert—
“(5) In deciding whether and when to make regulations under subsection (3) bringing section 65 (industrial action ballots: turnout threshold) into force for any purpose, the Secretary of State must have regard to what effect any provision made after this Act is passed for industrial action ballots to be conducted otherwise than by post has had, or is expected to have, on the proportion of those eligible to vote voting in such ballots.
(6) In subsection (5) “industrial action ballot” means a ballot for the purposes of section 226 of the Trade Union and Labour Relations (Consolidation) Act 1992 (ballots on industrial action).”

[Lord Collins of Highbury (Lab)]

My Lords, I have already spoken to Motion F. I beg to move.

Motion F1 (as an amendment to Motion F)

Moved by

Code of Practice on Reasonable Steps to be taken by a Trade Union (Minimum Service Levels)

Lord Collins of Highbury Excerpts

Wednesday 6th December 2023 Lords Chamber

The code under consideration in the Chamber today has been designed to address the concerns raised in this House and the repeated requests for clarity by providing assurance for trade unions on the reasonable streps that they should take. If this code is approved by Parliament, it will be issued and brought into effect by the Secretary of State in accordance with the procedure set out in Section 204 of the 1992 Act. The Government’s intention is for the code to be in effect before regulations implementing minimum service levels come into force. To achieve this, the Government are planning for the code to come into effect very shortly after the commencement order relating to it is laid. I hope that your Lordships will support this code. I beg to move.

[Lord Collins of Highbury (Lab)]

My Lords, this House, by quite large majorities, gave the elected Chamber the opportunity to think again on this legislation—and, unusually, more than once. The reason, quite simply, is that no one really knows what this law will mean. Trade unions do not know what reasonable steps they will need to take to protect the right to strike. Even Ministers —and I am glad to see the noble Lord, Lord Callanan, in the Chamber—could not make up their mind on what it means. Kevin Hollinrake, the Minister, told the Commons on 22 May 2023:

“The reality is that nobody will be sacked as a result of the legislation”.—[Official Report, Commons, 22/5/23; col. 103.]


That is what he told the elected Chamber. However, the noble Lord, Lord Callanan, told this House that workers who receive a work notice will lose protection from dismissal. The code states that the compliance notice should contain a comment stating that the two notices should be received from the employer and that if the member receives both, they

“must carry out the work during the strike or could be subject to disciplinary proceedings which could include dismissal”.

The Minister talked of minimum service levels in Europe. Nobody is against minimum service levels; when it comes to life and limb, they are essential. But in every European country, they work and are applied because they are determined by voluntary agreement. People consent and co-operate; as soon as you remove that consent, you are in trouble. That is why so many employers are so against what the Government are proposing.

We remain very clear in our view that the Strikes (Minimum Service Levels) Act is fundamentally unworkable and places undue limitations on an individual’s freedom of association. Let me be very clear to the noble Baroness, Lady Bennett of Manor Castle; the only democratic way to get rid of this bad legislation is to campaign for a Labour Government. We have promised to repeal this legislation when we get into government, and we stand by that pledge. I am sure the noble Baroness will agree that the implementation of that pledge should not be frustrated by an unelected Chamber.

As the noble Lord, Lord Callanan, knows very well, it was only late in the day that the Government committed to a statutory code of practice. That was because this House scrutinised that legislation and pushed this Government into trying to make it clearer what the reasonable steps should be for a trade union. It was this House that resulted in that change, and I am glad the Government heard and responded.

Of course, as the noble Lord said, following consultation, the Government did make some changes to the draft code; they have removed the requirements to communicate with the wider membership, as he says, and the duty on a picket supervisor has changed from a positive one to attend work to a negative one of ensuring that picketers avoid trying to persuade members on a work notice not to work.

However, the code imposes significant new duties on trade unions well beyond the scope of the Act, rather than simply providing guidance about the law. It also places trade unions in the position of policing members on behalf of an employer, acting with the authority of the state. The code contains nine—I repeat, nine—separate pieces of information that unions should include in a compliance notice, with those named in the work notice clearly and conspicuously.

The fact is that the code fails miserably to explain the legal issues with necessary accuracy. It states that unions are advised to tell members that they should receive from the employer a statement that the member is an identified worker who must comply with the notice given to the union. But, as the noble Lord said, there is no obligation under the Act for an employer to communicate with the workers named in the work notice. They need do so only if they want to keep open the option of dismissing them for not attending work.

What we do know—I will be very brief on this point—is that the slightest transgression in an industrial action ballot can lead to some employers seeking injunctions, even though the practical effect of that transgression is nil, so there is a concern that any deviation from the template contained in the code will invite legal challenges from some employers. As the TUC said in its excellent briefing, that would almost certainly lead some employers to seek to legally challenge unions. I hope the Minister will respond to that. Does he agree with that point of view? Does he think that such satellite litigation will aid the resolution of industrial disputes? Can he really explain the rationale for including a pro forma template on top of the guidance contained in paragraph 26?

Unfortunately, and sadly, that is not the only way in which the code could instigate a legal challenge. There are plenty of areas in the code that appear to allow for challenges, and that is something that we really need to think about. It comes back to the Minister’s original point on Report, which was that it will be for the courts to decide what is a reasonable step. Everyone in this House thought, “That isn’t really appropriate. Is that going to lead to the settlement of disputes? Clearly not”.

One of the letters that the Secretary of State has had was from the Joint Committee on Human Rights. I hope the Minister will address its letter of 24 November today. It raised a number of issues on the code, stating that it

“does nothing to reduce the impact of minimum service levels imposed through Regulations on trade unions, requiring them to actively encourage their own members to break their own strike”.

I hope the Minister will address today the four specific questions posed to the Secretary of State on the impact on Article 11 workers’ rights of these regulations.

The fact is that, as my amendment states, the code and the associated regulations will exacerbate conflict in the workplace. The code contains so much uncertainty that we are sure to see more legal action, which I am confident will entrench and prolong disputes, thereby causing more harm to workers, employers and, just as importantly, the public.

Amendment to the Motion

Moved by

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Moved by

[Lord Collins of Highbury]

As an amendment to the motion in the name of Lord Johnson of Lainston, at end to insert “but that this House regrets that the draft Code of Practice imposes significant new duties on trade unions, beyond the scope of the Strikes (Minimum Service Levels) Act 2023; could exacerbate conflict in the workplace; and despite its intention to provide additional clarification to unions, still contains significant areas of uncertainty.”

[Lord Collins of Highbury (Lab)]

That is the first time I have heard this House described as representative. I am not going to prolong the discussion. The noble Lord, Lord Cromwell, is absolutely right in that the essence of this is: what in practice is going to work? That is why most employers object to this code. It is a statutory code, unlike the one on the employer, which can be used against trade unions when a rogue employer might see that it is of benefit to take a legal case. Therefore, I beg to move my amendment and test the opinion of the House.