Employment Rights Bill

Lord Davies of Brixton Excerpts

Committee stage
Tuesday 3rd June 2025 Lords Chamber

[Lord Hendy (Lab)]

My Lords, Amendment 143 is intended to provide a tougher remedy for breach of the obligation, which is a very modest one, to consult in cases of collective redundancy. At present, the remedy is an award of loss of earnings capped at a maximum of 90 days, which the Bill proposes to increase to 180 days. My amendment is not concerned with that. It proposes judicial intervention to prevent the breach, or at least to restore the position prior to the breach. So, where a declaration has been made by an employment tribunal, the union should be entitled to go to the High Court to obtain an order to enforce that declaration. The employment tribunal does not itself have the jurisdiction to make such an order; indeed, it does not have the power to enforce its own orders. That is why it is necessary for workers to issue further proceedings in the county court if their employer fails to pay a tribunal award.

The amendment makes it clear that any dismissal which should have been subject to Section 188 of the 1992 Act but was not will be void and of no effect, so the obligation to continue to pay wages and to honour the other incidents of employment will continue until the employer has fulfilled its legal duty. I should add, in case any of your Lordships doubt it, that the High Court does indeed have the power to restrain dismissal and declare a purported dismissal void and of no effect. The court has often done so where the dismissal was unlawful because, in breach of contract, the power is still more apposite where the unlawfulness is breach of a statutory duty.

Finally, the amendment puts beyond doubt that the normal consequences of non-compliance with an order of the High Court will apply: that the company and any officer personally frustrating the order may be subject to proceedings for contempt of court, including fine, sequestration and, in the most egregious cases, imprisonment.

The rationale for my amendment is obvious. We are talking about a situation in which an employer has broken or proposes to break the law by throwing a significant number of people out of work without properly consulting on measures which might have avoided that situation. A very limited financial penalty is plainly not enough to dissuade lawbreakers, as I think the noble Lord, Lord Hunt, recognised. What is required is not just a more dissuasive remedy but one which prevents the unlawful situation, or at least restores the situation to lawfulness, so far as it can be restored. Only the High Court has the power to do that.

There is another reason: the need to comply with international law which the UK has voluntarily ratified. Conventions 87 and 98 of the International Labour Organization will need more detailed consideration in later amendments, but for current purposes it is enough to note that, together, they require member states—not just ratifying states—to respect and protect freedom of association and the right to bargain collectively. Compliance with international law is the eighth of Lord Bingham’s principles of the rule of law, and the importance of compliance with international law was emphasised by the Attorney-General in a speech to the Royal United Services Institute last week. It matters not whether the provision in question relates to trade, the environment, security, labour or any other matter, and compliance is not restricted to the black letter of the treaty but also required of the decisions of the bodies appointed by the treaty to supervise compliance with it.

One such constitutional body of the ILO is the tripartite Committee on Freedom of Association, which consists of representatives of government, employers and workers. On 8 November 2023, it published its decision on a complaint brought against the United Kingdom by Nautilus International, the RMT, the TUC and a number of international trade union federations. This arose out of the P&O Ferries scandal mentioned earlier this evening. At 7 am on St Patrick’s Day 2022, the employer summarily dismissed 786 seafarers, with security guards escorting them from the ships past waiting coachloads of agency staff from third-world, cheap-labour countries recruited to replace them.

The report says that the committee notes the complainants’ indication that

“while breaches of the UK law entitle claims to be made in an employment tribunal, such claims are subject to statutorily fixed (and very modest) maxima; for this reason, the company was able to quantify with precision what the cost of the dismissals would be and to assess how long it would be before that cost could be recouped from future profits generated by the poverty wages and diminished terms and conditions of the new crews. The complainants thus allege that the dismissal of 786 seafarers to replace them with non-unionized agency workers constitutes an act of anti-union discrimination. The complainants further allege that the existing legislation is insufficient to deter anti-union discrimination as in practice, employers can, on condition that they pay the compensation prescribed by the law for cases of unfair dismissals, dismiss any worker for being a trade union member with better terms and conditions under a collective agreement. The Committee recalls in this respect that protection against acts of anti-union discrimination would appear to be inadequate if an employer can resort to subcontracting as a means of evading in practice the rights of freedom of association and collective bargaining … The Committee considers that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities … The Committee recalls that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress … Furthermore, the compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future … The Committee therefore requests the Government to ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress”.

Of course, there the committee considered that the collective dismissals were in order to avoid long-standing collective agreements which provided for notice of dismissal and consultation over proposed redundancies, which it regarded as anti-union discrimination. That situation will not occur in every collective redundancy—of course that is the case—but it will be true in many, though not all, collective redundancy situations. I should add that what we are looking at here are really bad employers. The remedy that I am proposing will not be used against good employers that do their best to deal with the situation.

The tribunal remedies which the committee considered very modest were not just for failure to consult over collective dismissal but included compensation for unfair dismissal. Here we are considering the even more modest, statutorily capped compensation for failure to consult. As the committee held, what is needed are

“sufficiently dissuasive sanctions and prompt means of redress, emphasising reinstatement as an effective means of redress”.

Only an injunction will achieve that outcome. That would have stopped P&O Ferries in its tracks.

I say to my noble friend the Minister that I can see no reason not to add this remedy to those available to restrain such unlawful activity. While the increase in maximum award, from 90 to 180 days—as the tribunal has to assess compensation as what is just and equitable up to that cap—is not sufficient in itself, since injunctions are available for breach of contract, why are they not for breach of statute as well? I beg to move.

[Lord Davies of Brixton (Lab)]

I thank my noble friend for his powerful and clear speech; he has said it all. I just want to add that this issue has arisen from the P&O scandal that took place three years ago. The maritime unions are particularly concerned about this, and I hope that my noble friend the Minister will be able to provide some comfort for the arguments that have been presented. The issue of pre-emptive injunctive relief for seafarers and other workers is a crucial issue and it is possible that we will need to return to it on Report.

[Lord Sharpe of Epsom (Con)]

My Lords, I appreciate the intent behind Amendment 143. After all, we are all familiar with the high-profile cases, such as P&O Ferries, to which the noble Lord, Lord Hendy, referred in his introduction.

I cannot pretend that I was au fait with the case details that the noble Lord explained, but we have some concerns about the practical and legal consequences of what is being proposed here. It seems to us that the amendment would allow employment tribunals to declare dismissals void and as having no effect; therefore, in effect, reinstating employees regardless of circumstances.

That is a major departure from the current legal framework, where the remedy for a breach is compensation, not nullification. That obviously raises serious questions. What happens if a dismissal is declared void months later? Is the employee reinstated, and are they entitled to back pay? What if the role no longer exists or has been filled? For many businesses and many workers, that would create uncertainty and not protection.

There is also the issue of enforcement. Giving tribunal decisions the force of the High Court, and allowing contempt proceedings for breach, risks confusing two fundamentally different judicial systems. Tribunals are meant to be accessible and the High Court is not.

I also question whether this change would meaningfully deter bad-faith employers. Those who already factor in the cost of breaking the law may simply budget for this risk too. Meanwhile, small and medium-sized employers acting in good faith could face disproportionate legal exposure for administrative or technical errors. I look forward to hearing the Minister’s response.

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Moved by

[Lord Davies of Brixton]

143A: Clause 29, page 51, line 11, leave out “120” and insert “52”
Member's explanatory statement
This amendment applies the provisions for collective redundancy notices for ships’ crew to ships providing a service entering a harbour in Great Britain on at least 52 occasions in the relevant period.

[Lord Davies of Brixton (Lab)]

My Lords, I ask noble Lords to cast their minds back three years to 24 March 2022, when the P&O Ferries chief executive officer Peter Hebblethwaite made it clear to the House of Commons Transport Select Committee that he knew that his decision to sack 786 British seafarers broke the law. He went on to explain that he knew there would be penalties to pay, but these were simply, in his view, a cost of business. He even had the audacity to say that he would make the same decision again.

My noble friend Lord Hendy has already dealt with this, but it is a crucial issue which has raised important questions about how industrial relations operate in this country. The gross premeditation of the company’s action was evident to the whole country, as private security guards boarded ferries to physically force the crew out of work, to be replaced by cheaper agency crew recruited internationally and oblivious to the circumstances.

I have been relatively modest in putting all my proposed amendments in a single group, given the extent of the degrouping of amendments that has taken place. There are three issues being dealt with here: first, the need to widen the scope of the promised seafarer’s charter, mentioned by my noble friend the Minister; secondly, the need to reduce the threshold for the application of The Seafarers’ Charter in terms of visits by ships to UK ports; and thirdly, to ensure the necessary monitoring of the effectiveness of the legislation.

On the need to increase flexibility in The Seafarers’ Charter, the key amendment is 200AD; the rest are consequential. These amendments provide the flexibility to strengthen the mandatory seafarers’ charter, in addition to standards on pay and roster patterns. They are constructive in spirit and look to explore the Government’s position on mandatory employment standards for seafarers at work today and in the future.

Back in 2023, on the first anniversary of the scandal, Labour’s shadow Employment and shadow Transport Ministers committed the party to a mandatory seafarers’ charter as a direct response to this appalling episode. In a joint article in the Independent they wrote:

“The P&O scandal was … supposed to draw a line in the sand for seafarers’ rights. But for too many low-cost operators, their business model is based on exploitation. That is why we will introduce a strong, legally-binding Seafarers Charter that smashes the business model dependent on the cruel manipulation of vulnerable workers from around the world. This will mandate an agreement between unions, government and employers on minimum protections for pay, roster patterns, crewing levels, pensions, taxation and training”.


The unions, together with many MPs and Peers, continue to support that explicit aim for the charter set out by the Labour Party.

I also understand that the RMT was given ministerial assurances only last December that there would be flexibility to add employment conditions to the mandatory charter. Regrettably, DfT and DBT officials now tell us there will be no flexibility, citing difficulties around compliance with the UN Convention on the Law of the Sea. We are told that UNCLOS prevents the Government adding other employment conditions such as sick pay, holiday pay and pensions. This is hard to understand, and I would be grateful if my noble friend the Minister could explain. Even the voluntary seafarers’ welfare charter, introduced by the last Government in July 2023, includes sick pay and pension rights, as does the French Government’s legally binding seafarers’ charter, introduced on ferry routes to the UK in June 2024.

I beg the Minister to help us understand why national legislation on pay and hours of work for seafarers on international routes from UK ports is UNCLOS-compliant, but other areas of employment, including remuneration such as sick pay, holiday pay and pensions, are not compliant. If the Minister cannot do so in reply to this debate, a summary of the Government’s position should be circulated before Report. I ask the Minister to meet with the unions to explain why we have ended up in this situation. I reiterate that a public promise was made by the then shadow Secretary of State for Transport and the then shadow Minister for the Future of Work that the charter would cover not just pay and rosters but other issues, including sick pay, pensions and training.

Amendments 200AA, 200AB and 200AC deal with the threshold for application of the seafarers’ charter created in Schedule 5. We of course welcome the seafarers’ charter, but its effectiveness is set by the criteria which apply in terms of the rate at which the ships concerned visit UK ports. Clearly, the lower the figure for the number of visits required, the greater the proportion of seafarers who will have the necessary protection. In simple terms, the proposed amendments bring ships that call weekly in UK ports within scope, in contrast with the Bill, which requires more than twice-weekly visits.

I make no secret of my desire to see as many seafarers covered as possible, and not, in effect, limiting this to those who work on roll-on, roll-off ferries. Most ships that regularly work in UK waters are not that type of vessel. According to DfT statistics, over 160,000 seafarers are employed in the UK shipping industry and where possible, we must use the Bill and future legislation to equalise their employment rights with land-based workers.

The previous Government introduced a threshold of 120 calls per year in Section 3 of the Seafarers Wages Act. When that legislation was going through the Lords, the then Minister, the noble Baroness, Lady Vere, responded to an amendment from my noble friend Lord Tunnicliffe on this matter, stating that 52 calls per year

“would catch too many vessels that we did not intend to catch and would be overreach in terms of the current settlement with the international shipping community”.—[Official Report, 12/10/22; col. GC 102.]

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I therefore ask that my noble friend withdraws Amendment 143A.

[Lord Davies of Brixton (Lab)]

I thank my noble friend Lady Whitaker for her amendment. In introducing the group, I should have said that I strongly support what is proposed there. I thank the noble Lord, Lord Hunt of Wirral, for his measured comments and I thank my noble friend the Minister for agreeing to a meeting— I am sure it will be useful. Maybe I am an optimist, but I also thank him for a slight glimmer of hope that there will be some movement in relation to the measures. Some might express doubt, but I am a natural optimist, and I hope that the meeting will be constructive and that we will also be able to address the issue of information, as well as the specifics of the charter. With that in mind, I beg leave to withdraw my amendment.

Amendment 143A withdrawn.