Employment Rights Bill

Debate between Lord Fox and Lord Murray of Blidworth

Committee stage
Monday 19th May 2025 Lords Chamber

[Lord Fox (LD)]

Was the noble Lord in the Chamber at the beginning of the debate?

[Lord Murray of Blidworth (Con)]

I was—I was sitting over there. I apologise to the noble Lord, Lord Fox, for speaking after him. I am sure he is welcome to speak after me if he disagrees with anything I have to say.

Obviously, I am a barrister, as are many of the contributors this evening. I practised in the employment tribunal and in human rights, and I am a member of the Joint Committee on Human Rights. The Joint Committee wrote to the Government in respect of the Bill, expressing concerns that were reflected by the Equality and Human Rights Commission: in particular, the potential for a conflict between the right to freedom of expression, guaranteed by Article 10—as we have heard from various noble Lords—and the Article 8 right to a private and family life. That balancing exercise would be difficult for many employers to carry out.

The previous iterations of measures of this type included safeguards which have been omitted from the Bill, as the noble Lord, Lord Young, pointed out. In the Worker Protection (Amendment of Equality Act 2010) Act 2023 there was a measure that sought to place a duty on employers to take reasonable steps to prevent sexual harassment of their employees, and which is now Section 40A of the Equality Act. During its passage through Parliament, that Bill included provisions which sought to introduce a duty on employers to prevent non-sexual harassment of their employees by third parties. That was Clause 1 of that Bill, as brought from the House of Commons. That provision failed. It would have required all reasonable steps to have been taken to prevent harassment of the employee, solely because they did not seek to prevent the expression of an opinion in circumstances where the conduct constituting harassment involved a conversation in which an employee was not a participant.

In short, the Government have so far failed to answer the question from the Joint Committee about their reasoning for not including a similar carve-out for overheard opinions in the new duty in Clause 20. That was echoed in the original iteration of the Equality Act 2010, passed by the previous Labour Government, under Section 40(2) to (4). That would have required an employer to be liable for third-party harassment where they had failed to take such steps as would have been reasonably practicable to prevent the harassment. However, to be liable, the employer would have had to have known that the employee had been harassed by a third party on at least two other occasions.

The Government have decided not to adopt the same three-strike policy taken in the equivalent provisions or in the earlier potential measure proposed in the 2023 Act. Instead, we have a rule-making power that is said to provide what steps are to be regarded as reasonable. To my mind, that sits uneasily with the mandatory terms set out in new subsection (1A). For those reasons, it should not be part of this legislation.

Employment Rights Bill

Debate between Lord Fox and Lord Murray of Blidworth

Committee stage
Thursday 8th May 2025 Lords Chamber

[Lord Fox (LD)]

My Lords, this debate has been more interesting than I expected. In looking at Amendment 65, we should acknowledge that the noble Lord, Lord Sharpe, with his former ministerial responsibilities, had considerable interaction with the services that he described, so we should take him seriously.

In Amendment 65A, he sets out certain sectors. However, in seeking to deliver unambiguity, I think he has introduced new ambiguity. Sector-specific exemptions are bringing their own problems. I asked the noble Lord, Lord Murray, what a journalist is. Is it a card-carrying member of the NUJ or is it someone who blogs and calls themselves a journalist, or a group of people? That is just one example of the ambiguity that a sector system brings in. So I am drawn to the idea that we have something like subsection (1ZA) in Clause 9(3).

If noble Lords are worried about the wooliness of it—I am not sure that was the word that the noble Lord, Lord Murray, used—we can work to firm that language up. But to describe the job, rather than try to think of every single job title we want to include in primary legislation, is a better way of going about it. If the description is too difficult to nail, I am sure it is not beyond the wit of us all to find a better way of describing it.

Had the noble Lord, Lord Murray, been here a little earlier, he would have heard the shortcomings of the tribunal system being well exercised, and some comments from the noble Lord to the effect that the MoJ is looking at it. To return to that point, in my speech on the last group I asked for a meeting, so perhaps the Ministers could facilitate a meeting with interested parties on the Bill and the MoJ to find out how it is moving forward on tribunals; we need some line of sight on that. It is something of a capitulation if we say, “The tribunals are no good, so we’re not going to make the right legislation because they won’t be there to uphold it”. We have a duty to make the right legislation, to put it in place and to make sure that the tribunals can deliver.

[Lord Murray of Blidworth (Con)]

I share much of what the noble Lord, Lord Fox, says. But the point I was making was that the answer from the Government is, “We’re going to provide imprecision in this legislation, and we’re going to let the employment tribunal sort it out and tell us what it means”. My point was twofold. First, that will take far too long because of the chaos in the tribunal system, and secondly, structurally, the employment tribunal cannot give an answer to that at first instance because it is not a court of record.

[Lord Fox (LD)]

Those are good points. Again, had the noble Lord seen an earlier episode of the soap opera of this Committee, he would have heard noble Lords from all around talk about firming up imprecision, which is why I talked about firming up the imprecision of that list of attributes rather than trying to produce a list of businesses and activities that somehow should come into this—an impossible job, frankly. Of course we should have a war on imprecision but, in the end, there are going to be some things that tribunals rule on that will be important, and we need to have the tribunals active and quick to do so.

To some extent, there is an element of creativity around the fungibility of some of these criteria—I think the noble Baroness, Lady Bousted, made that point. If we have some flexibility of interpretation, schools and other organisations that want to hang on to valued colleagues will find a way of using it in order to do that. If we start to rule out professions or rule in very hard and fast rules, we lose the opportunity to retain and attract certain groups of people. I understand the point made, that the more of that fungibility there is, the more so-called imprecision, and there is a balance between the two. That is why I still think that if we have ideas around new subsection (1ZA), that is the way forward on this rather than a list of jobs.