Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Wednesday 21st May 2025 Lords Chamber

[Lord Monks (Lab)]

My Lords, I do not doubt that critics of this part of the Bill speak with a lot of personal experience as well as commitment to their employees and the way they run their affairs. However, let me remind people that the argument that is really coming from the other side—that the qualifying period would be damaging to employment—is the argument as has been used against just about every bit of progressive employment legislation from the Factory Acts onwards. If noble Lords think that that is hyperbole, they should remember the national minimum wage and the campaign that was run against it. None of that came to anything like what was forecast from that side of the House. I have risen briefly to ask the other side of the House to remember that it was wrong on the minimum wage and to consider whether it might be wrong on this as well.

[Lord Hendy (Lab)]

My Lords, I get the impression that there is a bit of a misunderstanding around the nature of employment tribunals. I spent the first half of a long career at the Bar doing employment tribunal cases, many of them unfair dismissal cases. In fact, the first case I ever did—pro bono, by the way—was an unfair dismissal case in 1972, under what was then the very new unfair dismissal legislation. Unfair dismissal cases are difficult for employees to win. Most cases that go to a full hearing result in the employer being vindicated.

I want to make two points. The first is that employment tribunals now have robust procedures for weeding out vexatious cases; such cases never go to a full hearing. Secondly, I remind your Lordships of the law on unfair dismissal in Section 98 of the Employment Rights Act 1996. The test is in two parts. First, the employer must demonstrate that the reason for the dismissal is capability, qualifications, conduct or redundancy or the fact that the employment is in breach of some enactment. Once the employer has shown that that is the reason, the test for the tribunal—I shall read it out—is whether the dismissal is fair, which,

“depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee”.

So all the factors that one would expect to have to be taken into consideration are taken into consideration.

The tribunal then has to determine that,

“in accordance with equity and the substantial merits of the case”.

The Court of Appeal has added yet another burden. When the tribunal decides whether the employer acted reasonably or unreasonably, it is not about what it considers was reasonable or unreasonable; it is about whether it considers that the dismissal fell within the band of responses of reasonable employers. It is at two stages removed. It is not like an ordinary negligence case where the court decides whether an employer was reasonable or not reasonable in putting a guard on the machine. It must decide. Even if it thinks that the decision was unreasonable, if it finds that, nevertheless, reasonable employers would say that it might be possible that the reason was fair, that would be legitimate.

[Baroness Noakes (Con)]

The noble Lord referred to the likelihood of cases succeeding if they got as far as the tribunal. Does he accept that the vast majority of cases that are initiated never get as far as a tribunal because there is a huge incentive in the system for employers to settle? The costs of taking a case right the way through are huge—not just in the monetary cost of employing clever employment lawyers but, in particular, in the diversion of management effort within the organisation. I have seen this in large organisations, where swathes of the management team can be tied up for long periods of time. Employers cannot afford that in the broadest sense. If you put that in the context of smaller organisations, they absolutely cannot cope with it.

Whatever happens at the tribunal and whatever the law says, the mere initiation of an action nearly always results in an economic decision, made by the employer, to settle. That is one of the most difficult aspects and is why extending that into the early period of employment causes so many worries for employers.

[Lord Hendy (Lab)]

I absolutely agree that most cases never get to a full hearing; only a tiny minority ever do. The noble Baroness is right that many cases settle, of course. Many are conciliated, because there is now compulsory conciliation by ACAS, but many are withdrawn by the employee. You have to visualise it, as I am sure the noble Baroness does: most employees bringing an unfair dismissal claim are completely unrepresented. They are on their own, so all the expense, research and preparation that have to be done must be done by them personally. That is a huge disincentive. Many claims—tens of thousands of them—are simply not brought because it is not worth the employees’ while to do it.

[Baroness Verma (Con)]

My Lords, does the noble Lord accept that the case is exactly the same for small employers? They too will be in the position of having to deal with tribunals in the same way—hence why, as often as not, the settlements are taking place.

[Lord Hendy (Lab)]

Of course; that is always the way whenever there is litigation. Whatever the subject matter, people do not want the burden of defending the case and the people bringing the case do not want the burden of bringing it. That is just the reality of litigation.

I will say one last thing before I sit down. The argument that the noble Lords and noble Baronesses opposite have put forward is all about what they perceive to be the consequences of this matter, which my noble friend Lord Monks just addressed. But nobody can seriously advance the case that employers should have the right to dismiss anybody unfairly and without recourse to the law.

[Lord Vaux of Harrowden (CB)]

Does the noble Lord accept that these are not simply arguments that people around this Chamber are putting forward but matters that are in the Bill’s impact assessment? It is the Government’s own statement that the Bill will have these impacts. It is not being made up by any of us: the Government accept that this will be the impact.

[Lord Hendy (Lab)]

That may very well be, but it still does not remove the fundamental point: what is being proposed is a category of worker who can be dismissed unfairly for the most extreme reasons without resort to any justice.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

[Lord Jackson of Peterborough (Con)]

Well, the noble Baroness will not be present at every employment tribunal and hear and adjudicate every case. As my noble friend Lord Young of Acton has said, there is a significant threat of inadvertent issues arising from this legislation, which, as my noble friend Lady Cash has said, is very poorly drafted. As subsection 2(a) of the proposed new clause sets out, it is important to look through the prism of free speech at Clauses 19 to 22.

It is also important to look at the likely costs to employers. This is the central point of my remarks: we do not know what those costs will be. It is certainly appropriate that Ministers be required to tell Parliament what the ramifications are in terms of cost. This is a Government who are committed to growth and to supporting businesses in all their endeavours. Therefore, it would be sensible to consider a review of how these issues impact on businesses.

On proposals for mitigations, there have been no ideas, no protocols, no concordats, and no policies put in place to give any guidance to smaller businesses—I am not necessarily referring to the smallest micro-businesses—to cope with the problems deliberately arising because this Labour Government have chosen to put these encumbrances and burdens on businesses. They are not giving any support to businesses to help cope with this. The costs will fall on the shareholders, on the businesses, and ultimately on the workforce—and it will cost jobs. For that reason, I support the amendment. It does not detract from the important commitment to protect ordinary working people, who deserve to be able to go to work without being bullied, harassed or treated unfairly or egregiously. We all agree with that, on which there is a consensus. It would not detract from that to make an amendment that would provide extra protections against people who are vexatious or malicious, or who cause difficulties in the long run, for no apparent reason. It is a sensible amendment that would protect business and would also protect the workforce.

[Lord Hendy (Lab)]

Can the noble Lord indicate what he thinks the value of an impact assessment is that does not weigh the benefits that ensue from the legislation but only the costs?

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Tuesday 29th April 2025 Lords Chamber

[Baroness Carberry of Muswell Hill (Lab)]

My Lords, I follow on from the excellent points that have been made by my noble friends on this side of the Committee by addressing, perhaps more specifically, the letter of Amendment 1. I preface my remarks by saying that I might be new to this, but I am a bit puzzled because I thought that the Benches opposite did not like purpose clauses. In the past, when Labour proposed such clauses, there was some push-back, and this side has been accused of poor practice and of risking provoking unintended consequences.

My main problem with the proposed new clause is that the list provided is not exhaustive and understates the Government’s ambition with this Bill. If we were to put our heads together to produce an exhaustive list of purposes, perhaps we might include the purpose that the Bill helps give effect to the Government’s manifesto promise to make work pay. We might also want to add that the ambition is to help stimulate economic growth, building on the extensive international evidence we have that shows that labour market protections lead to improved economic outcomes, including higher productivity. We might also want to mention that the Bill aims to end exploitative practices and redress the balance between employer and worker, and that it seeks to modernise trade union legislation.

My general point is that perhaps we do not need such an extensive list. I invite the noble Lord, Lord Fox, to clarify for us in his response in what way a non-exhaustive list, as provided in this amendment, is any better in advancing understanding of the intentions of the Bill than no list at all.

[Lord Hendy (Lab)]

My Lords, I too rise to address Amendment 1. It is a pleasure to follow my noble friend Lady Carberry. I am not clear about the purpose of Amendment 1. It seems to me that the Government have laid out the purpose of the Bill in the Long Title. It has been given a very Long Title that sets out its ambit.

What I am clear about, however, is the need for this Bill. Last August, a report by Professor Deakin and Dr Barbakadze of Cambridge University, Falling Behind on Labour Rights, stated that

“on almost every measure of employment protection, the UK is significantly behind the average for other countries in the Organisation for Economic Development and Cooperation (OECD), 38 countries generally understood to be those with a high level of economic and social development globally … As they stand, labour laws in the UK are barely half as protective as those found in France and significantly below other notable European countries … This strongly suggests that there is significant scope for improvement before British labour law is even close to matching that of our nearest neighbours”.

My noble friend Lord Monks mentioned inequality in the United Kingdom in comparison with other countries. The OECD has also considered that. It currently ranks Britain as the eighth most unequal of 40 major economies in terms of income inequality. Among EU member states, only Bulgaria and Lithuania are more unequal than the United Kingdom. The European Participation Index ranks the degree of worker participation in business decision-making in different European countries. The UK is rated 26th out of 28, with lower participation than all countries except Latvia and Estonia.

There are many other metrics by which the current state of play can be judged, and the status quo is simply not acceptable. I will not mention them all, but I will mention just three. First, median pay in this country is currently just over £600 a week. Median does not mean average; it means the pay point of half the working population. In other words, half of workers earn less than just over £600 a week, although half earn more than that. Secondly, of those on universal credit, 37% are actually in work. Thirdly, we find that 6.8 million people are in insecure work; three-quarters of them—that is, some 5 million workers—are in what is described as “severely insecure” work.

The Bill does not do all that I think it should. I had the honour to serve as the legal adviser on the working party that drew up A New Deal for Working People. It is clear that there are major differences. In later debates in Committee, I will seek to move some amendments to redress some of what I consider to be the shortcomings. Overall, however, the need for the Bill is simply unarguable. We cannot go on in the way that we are at present, with workers denied a voice at work, working in insecure conditions and on extremely low pay. The Bill will go a long way to assist in putting that right.

[Lord Empey (UUP)]

My Lords, I hope this Bill does not turn into a Punch and Judy show between employers on one side and organisations and trade unions on the other, because it obviously has a number of meritorious proposals. However, the forensic introduction to the amendment by the noble Lord, Lord Fox, illustrates that this piece of legislation is a work in progress. I understand why the Government deem it so important, but they have to concede that a lot of it is being done on the hoof, which is undermining the Government’s position.

I had the privilege of being Employment Minister in Belfast for three and a half years, and I worked very closely with business and trade unions during that period. The last piece of legislation I did had the racy title—I am sure the Minister would be very happy to adopt it—of the Employment (No. 2) Bill. It is the sort of thing that lets the blood course through your veins. But the one area where we have failed as a country for years and years is skills. We talk about it, we have apprenticeship models, we have this, that and the other, yet we still have not solved the problem. We got rid of the old-style tecs, colleges and so on, and we have been stuck in a rut ever since.

It is obvious that there have been abuses and insecurity, and there is no point in trying to deny that; I listened carefully to what the noble Lord, Lord Monks, had to say. However, there is something that I feel a bit concerned about. We live in a world where, by and large, the major trade unions operate with large employers, whether it is the public sector or big organisations, but the bulk of the industry—the bulk of the growth in employment and everything else—comes from small businesses and micro businesses, and they do not have the capacity or the risk-taking capability in how and when they employ people.

It strikes me that there is a risk of issues creeping into what we are trying to do in this country that could have the unintended consequence of making it less likely for people to employ individuals. We have to look at the international situation. We cannot ignore what is going on. There is a revolution taking place that is having a negative effect. We also have the employer national insurance contribution. We cannot ignore that either; it is a big deal.

--- Later in debate ---

[Baroness Carberry of Muswell Hill (Lab)]

My Lords, I am sorry that I find myself disagreeing for the second time today with the noble Lord, Lord Fox, specifically on the proposition that the right to be guaranteed regular hours should be replaced by a right to request.

My noble friend Lord Barber reminded us that this proposal originally came seven years ago from the Low Pay Commission. In that room were nine commissioners, who produced a unanimous report. There were three independent labour market experts, three representatives of workers and senior representatives from the Federation of Small Businesses, the CBI and big business, and, as I say, the recommendation was unanimous. In that discussion, the Low Pay Commission considered, in the words of the noble Lord, Lord Fox, whether a right to request could operate more effectively than a guaranteed offer on the ground and in the workplace, and the conclusion was that a right to request would not be a better option. That was primarily because you would be asking workers who have the least power in the labour market—the most vulnerable workers—to assert their rights. As we have been reminded, the vast majority of those workers who at the moment request guaranteed hours are turned down.

Another problem, from my point of view, with the group of amendments that are suggesting that there should be a right to request is that they are all silent on the consequences of a denied request. That is a major problem with the propositions in the amendments. In this context, I suggest that a right to request is no effective right at all.

[Lord Hendy (Lab)]

My Lords, I have a small point on Amendments 7 and 11 to 13, which seek to extend the reference period from the current 12 weeks in the Bill to 26 weeks. Last year the Chartered Institute of Personnel and Development published some figures showing the number of workers who stayed in their job for a three-month period, which I take to be some 13 weeks rather than the 12 weeks in the Bill. Some 1.3 million workers worked for less than that period of time, meaning that under the Bill 1.3 million workers will never reach the end of the reference period in order to claim the right. The figures show that if the period were extended to 26 weeks, as the amendments propose, that would cover some 8.9% of all employees, which comes to 2.7 million workers. So the effect of those amendments would be to exclude a further 1.4 million workers from ever being covered by the reference period.

Steel Industry

Lord Hendy Excerpts

2nd reading
Saturday 12th April 2025 Lords Chamber

[Lord Hendy (Lab)]

My Lords, the Government are to be congratulated on acting decisively and promptly. Like, I think, the noble Lord, Lord Hunt of Wirral, I came here thinking that we were going to be debating the nationalisation of the steel industry; I confess that I am disappointed to find out that we are not. However, the Bill that the Government have put forward buys space and time for them to put forward a real plan for the saving of the steel industry. I hope that the ultimate decision will be to nationalise the steel industry. It is a national asset, as many speakers have described today—and by “national asset” I do not just mean the blast furnaces, the presses, the cranes and the buildings: the workforce also form a national asset and they deserve to be protected.

The Bill that the Government have put forward demonstrates the complete failure of the privatisation of this industry. I hope the Government will conclude that nationalisation is the answer and I hope, too, that they will consider that remedy for Grangemouth, the water industry and, of course, the energy industry, whose profiteering has done so much damage to the steel industry.

Employment Rights Bill

Lord Hendy Excerpts

2nd reading
Thursday 27th March 2025 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I congratulate my noble friend the Minister on her elegant exposition of the Bill in opening today’s debate. I also congratulate our four maiden speakers on their excellent contributions. Like the noble Lord, Lord Balfe, I enjoyed the contributions of no less than three former general secretaries and one former AGS of the TUC.

In this debate I appear as Oliver Twist. Although, like others, I express gratitude for the Bill in place of the starvation rations given to workers by the previous Government, I ask for more.

The Bill will confer many benefits on our 34 million-strong workforce, but it is a long way short of the full—but hardly gastronomic—menu in Labour’s Green Paper, A New Deal for Working People, drafted by a committee to which I had the honour to be legal adviser and which was chaired by Andy McDonald MP. A New Deal for Working People was adopted by the Labour Conference in 2021, reaffirmed in 2022, reiterated in Labour’s Plan to Make Work Pay: Delivering A New Deal for Working People, and referenced in both the election manifesto and the King’s Speech.

Time permits me to raise only two of the many items left off the bill of fare. Both are essential to increase pay, and hence demand, in the economy. Both are vital to substitute negotiation for litigation. The first is sectoral collective bargaining: in other words, collective bargaining between unions and multiple employers to reach a collective agreement setting minimum terms across a particular sector called a “fair pay agreement”. A New Deal for Working People committed to introduce them across the economy. Labour’s Plan to Make Work Pay promised to

“start by establishing a new Fair Pay Agreement in the adult social care sector”.

The election manifesto referred to this fair pay agreement as a “sector collective agreement”. In contrast, the Bill makes no provision for sector-wide collective bargaining in any part of the economy. Instead, it expressly provides that the School Support Staff Negotiating Body does not constitute collective bargaining, and that its outputs are not collective agreements. For the Adult Social Care Negotiating Body, the Minister has regulatory power to so rule.

In any event, ministerial control over these bodies’ membership, terms of reference and manner of working, with unfettered power to override any agreement or disagreement, completely negates the definition of free collective bargaining, both in statutory and international law.

My second issue is the right to strike. The Bill sweeps away the minimum service level Act, and most of the Trade Union Act 2016; it simplifies notice and extends ballot mandate. The Government are to be congratulated. But the Bill does not remove the anti-union legislation of the 1980s, which hamstrings unions and has led to a near collapse in collective agreement coverage. That legislation is incompatible in a number of respects with our ratified obligations under ILO Convention 87 and Article 6(4) of the European Social Charter. This is not a matter of opinion. The supervisory bodies have so held consistently since 1989, as my noble friends Lord Barber and Lady Bousted have mentioned. A new deal committed this party to bringing our law on industrial action into line with our international legal obligations. It is a rule-of-law issue. The Bill will need to be amended accordingly.

Nevertheless, the grace and eloquence of the Minister make her singularly ill-fitted to play Mr Bumble.