Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Tuesday 10th June 2025 Lords Chamber

Moved by

[Lord Hendy]

238: After Clause 64, insert the following new Clause—
“Right to take industrial action(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended as follows.(2) After section 219, insert—“219A Right to strikeEvery worker shall have the right to take industrial action, whether or not in breach of any contract, subject to the provisions of this Part.””Member’s explanatory statement
This amendment would establish a clear positive right to strike (and take action short of a strike).

[Lord Hendy (Lab)]

My Lords, it is a bit daunting, at 9.50 pm, to speak to a series of amendments relating to the right to strike. I thank my noble friend the Minister for taking time out of her very busy schedule to discuss these amendments, and amendments on collective bargaining, with me last week. The meeting was very amicable and very constructive, but Members opposite will no doubt be pleased to learn that she yielded not an inch on these amendments. None the less, I think it worth while to advance them.

Amendment 238 is intended to confer a positive right to strike. Striking and other forms of industrial action constituted a criminal offence until 1875 and were subject to civil liability until the Trade Disputes Act 1906. Since then, the law has undergone various evolutions, until the Conservative Governments passed a series of Acts in the 1980s, consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992, which severely restricted industrial action.

Subject to those restrictions, the Court of Appeal in Metrobus v Unite in 2009 held:

“In this country, the right to strike has never been much more than a slogan or a legal metaphor. Such a right has not been bestowed by statute. What has happened is that, since the Trade Disputes Act 1906, legislation has provided limited immunities from liability in tort. At times the immunities have been widened, at other times they have been narrowed. Outside the scope of the immunities, the rigour of the common law applies in the form of breach of contract on the part of the strikers and the economic torts as regards the organisers and their union”.


As the Court of Appeal put it in RMT v Serco Ltd in 2011:

“The legislation therefore secures a freedom rather than conferring a right as such”.


Both judgments noted that the European convention and other international laws ratified by the UK protected the right to strike, but that was held to be insufficient to establish such a right in UK law. So there is no positive right to strike in the UK, merely a freedom to take industrial action, protection from what would otherwise be unlawful. My amendment proposes that we should have such a right. In making that case, I do not suggest that such a right should be free of limitations. If this amendment were adopted, the current statutory restrictions on its exercise would remain.

The international treaty obligations by which the UK has elected to be bound support the case for my amendment. The UK ratified ILO Convention 87 on freedom of association and protection of the right to organise on 27 June 1949. The ILO, of course, is a tripartite body representing Governments, employers and workers of virtually every country in the world. Though Convention 87 does not expressly mention the right to strike, since the 1950s the relevant supervisory committees of the ILO have held repeatedly that it does so implicitly. For decades, member states have acknowledged that jurisprudence. For example, the UK Government have argued in the ILO:

“The right to strike, which, although not expressly laid down in Convention No. 87, was implied by the provision there for the right freely to organise activities”.


Independently of Convention 87, the ILO recognises the right to strike. A joint statement issued by the employers’ group, workers’ group and governmental groups in 2015 affirmed that:

“The right to take industrial action by workers and employers in support of their legitimate industrial interests is recognised by the constituents of the International Labour Organisation”.


I turn to other international treaties ratified by the United Kingdom. The UN Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights protect freedom of association and the right to be a union member. In 2017, the UN special rapporteur on freedom of association stated:

“The right to strike is also an intrinsic corollary of the fundamental right of freedom of association. It is crucial for millions of women and men around the world to assert collectively their rights in the workplace, including the right to just and favourable conditions of work, and to work in dignity and without fear of intimidation and persecution”.


Article 8.1(d) of the International Covenant on Economic, Social and Cultural Rights explicitly requires

“States Parties … to ensure … The right to strike”.


In 2019, the supervisory bodies responsible for the two covenants I have just mentioned—respectively the Committee on Economic, Social and Cultural Rights and the Human Rights Committee—issued a joint statement on the basic principles of freedom of association common to both covenants, stating,

“the right to strike is the corollary to the effective exercise of the freedom to form and join trade unions”.

In 1997, the Committee on Economic, Social and Cultural Rights addressed in relation to the United Kingdom the very issue raised by this amendment, holding that:

“The Committee considers that failure to incorporate the right to strike into domestic law constitutes a breach of article 8 of the Covenant. The Committee considers that the common law approach recognising only the freedom to strike, and the concept that strike action constitutes a fundamental breach of contract justifying dismissal, is not consistent with protection of the right to strike”.


This led the committee to recommend that the right to strike be established in UK legislation because

“the current notion of freedom to strike, which simply recognises the illegality of being submitted to an involuntary servitude, is insufficient to satisfy the requirements of article 8 of the Covenant”.

In 2002, the committee reiterated its concern that

“failure to incorporate the right to strike in domestic law constitutes a breach of article 8 of the Covenant”,

and repeated its recommendation that the right to strike be incorporated in UK legislation. It cannot be acceptable that the UK will not comply with these obligations.

At European level, the European Court of Human Rights has recognised in a succession of cases that the right to strike is implicit in the right to form and join trade unions, protected by Article 11.1 of the convention. The other instrument of the Council of Europe, the European Social Charter 1961, is more specific and provides in Article 6.4 that the contracting parties recognise

“the right of workers and employers to collective action in cases of conflicts, including the right to strike”.

Not only is the right to strike incidental to freedom of association but it is a necessary corollary of the right to bargain collectively. Without power to withdraw their labour collectively, workers have no leverage against the much greater power of employers to set the wages, hours, and terms and conditions under which they labour.

The point was elegantly stated by the Supreme Court of Canada in the Saskatchewan Federation of Labour case in 2015:

“The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations … The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction”.


Finally, in this survey, it is to be noted that the EU-UK Trade and Cooperation Agreement 2022 provides in Article 399 that:

“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted”.

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[Lord Hendy (Lab)]

My Lords, I am very grateful to the noble Baroness, Lady Jones of Moulsecoomb, for her support and her economic analysis of the consequences of the absence of the effective right to strike. I am grateful to the noble Baroness, Lady Fox of Buckley. I am not sure I quite understood her question, but I am not trying to ring-fence an artificial, theoretical right. This amendment has purpose. I recognise the realities of the political situation in which we are arguing, but this right, were it to come about, would have practical, real consequences and continue what she described as the fight in real life.

The purpose of these international laws, of course, is to lay down minimum fundamental standards for the entire globe. Although some of them are quite ancient, dating to just after the Second World War, and while I accept that capitalism and the world of work have evolved, the fundamental nature of the entitlement to freedom of association, the right to bargain collectively and the right to strike remains, and it is very important that we keep an eye on these international standards and the modern interpretation of them by the bodies which are charged constitutionally to interpret them.

I am grateful to the noble Lord, Lord Goddard, for what I discerned was his support, in a way, at least for the principle. This is my fault entirely, but I was moving Amendment 238 only. I am afraid that he has the further ordeal of listening to me again for the range of further right to strike amendments, including that in relation to prison officers.

I am grateful to the noble Lord, Lord Sharpe, for his thorough response to my arguments. He can use the phrase “constitutional benediction”, but it is better coming from the Chief Justice of the Supreme Court of Canada. I will not take up time dealing with all his arguments; the differences between us are self-evident. I just point out that a positive right to strike exists in virtually every country in Europe, and they do not have a difficulty with issues of breach of contract. Of course, the restrictions on the exercise of the right to strike differ from one country to another, but the positive right exists almost everywhere.

Finally, I thank my noble friend the Minister for her very full response. She says that a positive right to strike would cut across our constitutional arrangements. I just remind her that Section 220 of the 1992 Act provides a positive right to picket; if we can have a positive right to picket, I do not see why we cannot have a positive right to strike. For the avoidance of doubt, I was not suggesting for a moment an absolute and unqualified right to strike. Everywhere in the world that there is a right to strike, it is always subject to limitations, which differ from country to country. The question that these international bodies wrestle with day in, day out is whether the particular limitation is in conformity with whatever the international treaty is.

My noble friend asserts that we are in compliance with international law on this. We have to agree to disagree on that point. I do not believe that to be the case. Of course, I agree with her that this Bill is a great improvement on the law as it is at the moment, but she knows that my view is that it is not quite enough. With that, I beg leave to withdraw the amendment.

Amendment 238 withdrawn.

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Moved by

[Lord Hendy]

239: After Clause 64, insert the following new Clause—
“Right to take industrial action (No. 2)(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended as follows.(2) Omit section 223 (action taken because of dismissal for taking unofficial action).”Member’s explanatory statement
These amendments would remove section 223 of the 1992 Act which renders industrial action unlawful if one of the reasons for the industrial action is that the employer has dismissed one or more workers for taking unofficial industrial action.

[Lord Hendy (Lab)]

My Lords, it is now 10.22 pm, so I apologise for assaulting your Lordships’ ears with a series of amendments which also deal with the right to strike. Since time is precious, I have decided to focus on one amendment in particular and let the rest speak for themselves. I had hoped that my noble friend Lord Woodley would speak to his amendment on prison officers, but he is unavoidably not in his place. I will deal with that amendment when I get to it.

I will focus on Amendment 240, which introduces six specific measures aimed at the restoration of statutory protection for secondary action. Again, I do not entertain a great deal of hope for this amendment—I am a realist—but I express my gratitude for the support of the noble Baroness, Lady Jones of Moulsecoomb, who has added her name to it; for a briefing from the British Medical Association; and for the support of unions, including ASLEF, the BMA, the Bakers, Food and Allied Workers Union, the Fire Brigades Union, the RMT and the University and College Union.

Solidarity action is an inherent aspect of freedom of association and the right of workers to act for and on behalf of fellow workers, particularly fellow trade unionists. From 1906 to 1982, there was no legal distinction between solidarity action and other industrial action. The Conservative Government then introduced restrictions on certain kinds of secondary action, and in 1990 all statutory protection was withdrawn. The Labour Party strongly objected. In the parliamentary debates on the 1990 Bill, Tony Blair, then shadow Employment Minister, said in the other place:

“The abolition of sympathy action is unreasonable, unjustified and way out of line with anything that happens anywhere else”.


In relation to the proposal that all forms of sympathy and secondary action were to be forbidden, he said:

“That proposition is so manifestly unfair and unreasonable … that it is fatal to any pretence of even-handedness in the Bill”.


Compliance with international law is a duty incumbent on the state. Lord Bingham’s eighth principle of the rule of law is the obligation of the state and Ministers to comply with their international treaty obligations. In this House, last November, the noble and learned Lord the Attorney-General said of compliance with international law that:

“We should all be immensely proud of it, and this Government will seek at every turn to comply with our obligations”.—[Official Report, 26/11/24; col. 680.]


He developed the theme in a lecture to the Royal United Service Institute on 29 May this year in which he rejected “cherry picking” among international obligations. He continued,

“The argument … that the UK can breach its international obligations when it is in the national interest to do so, is a radical departure from the UK’s constitutional tradition, which has long been that ministers are under a duty to comply with international law … states can leave the treaties they have signed and agreed on. But the integrity and force of the system requires that once a party, to an agreement, they abide by its rules — they don’t pick and mix”.


It will be recalled that the Labour Party in 2021 adopted a Green Paper, Labour’s New Deal for Working People. It was integrated into Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People. It was explicitly referred to in the election manifesto and in the King’s Speech. The paper said:

“The laws regulating industrial action should ensure that UK law complies in every respect with the international obligations ratified by the UK, including those of the International Labour Organization and the European Social Charter, as reiterated in the Trade and Cooperation Agreement with the European Union”.


The UK has ratified ILO Convention 87, which protects the right to strike. Since 1989, the ILO committee of expert jurists has reviewed the UK’s legislative restrictions on secondary action and held them in violation of ILO Convention 87. The committee held that secondary action should be permitted in three situations. First, where it relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves. Secondly, in any event, a general prohibition of sympathy strikes could lead to abuse, and workers should be able to take such action, provided the initial strike they are supporting is itself lawful. And thirdly, furthermore, the restriction to disputes only between workers and their own employer

“could make it impossible for unions to take effective action in situations where the ‘real’ employer with whom they were in dispute was able to take refuge behind one or more subsidiary companies who were technically the ‘employer’ of the workers concerned, but who lacked the capacity to take decisions which are capable of satisfactorily resolving the dispute”.

That condemnation in 1989 has been repeated many times in the Committee of Experts’ observations on the United Kingdom, including in 1995, 1999, 2001, 2003, 2007, 2009, 2011 and 2013.

The other ILO committee, the tripartite Committee on Freedom of Association, has also condemned the UK in this regard, holding that:

“a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association, the Committee once again requests the Government to take the necessary measures to ensure that sympathy strikes, as well as social and economic protest action, are protected under the law”.

In November 2023, that committee reviewed the P&O Ferries scandal, and among other things, held that:

“At the outset, the Committee recalls that a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful … The Committee recalls that it had previously requested the UK Government to take the necessary measures to ensure that sympathy strikes were protected under the law … The Committee requests the Government to engage with the social partners to overcome challenges regarding the legislative prohibition on sympathy strikes, in conformity with freedom of association”.


The request was ignored.

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The Prison Service and the POA have developed a strong working relationship in recent years, and it is the Government’s hope that this position continues going forward. I can tell my noble friend Lady O’Grady that we continue to work with both sides, and we hope to find a more substantial way forward on these issues. With this in mind, I ask my noble friend Lord Hendy to withdraw his amendment.

[Lord Hendy (Lab)]

My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, for her support, her attention to Amendments 239 and 241, and her economic analysis of inequality in the role of trade unions. I thank my noble friend Lady O’Grady for developing that by explaining that the purpose of these amendments is to restore the balance of power somewhat.

I also thank her for dealing with Amendment 253 on prison officers. I feel somewhat guilty that I did not give due time to that subject in my speech. However, I note the additional point that prison officers in Scotland have the right to strike. It seems inexplicable to me that those in England, Wales and Northern Ireland are deprived of it while those in Scotland enjoy it.

I thank the noble Baroness, Lady Coffey, for her contribution. She did not deal with the requirements of international law; instead, she put forward a case that we have heard before, which in essence is that of special pleading that the circumstances of the United Kingdom justify non-compliance with international law. I do not think that that argument is capable of success.

The noble Lord, Lord Jackson, rather misunderstands the position of international law and the theory of dualist and monist regimes. The United Kingdom is a dualist regime. That means that the obligation of international law falls not on the citizens, corporations, trade unions or other bodies in the United Kingdom but on the state itself. The obligation to comply with international law is that of the state, not of the citizens within it.

The noble Lord mentioned the European Convention. That is somewhat different, because Parliament has made most of the European Convention part of UK law itself. That is a different thing altogether. I am not arguing that the provisions in international law that I have explained apply directly in the United Kingdom or in UK courts or tribunals. The obligations are on the state to conform to those obligations which it has ratified.

The noble Lord, Lord Hunt, regards these measures as a dangerous and retrograde step and regards the current regime over the last 40 years or so as being very successful. On the contrary, I am with the noble Baroness, Lady Jones of Moulsecoomb, in regarding the legislation of 1980s as having led to powerlessness, poverty, inequality, insecurity of work and insecurity of earnings. I disagree with his analysis, in which he describes the consequences of some mythical fantasy world of his own imagination. I say just this about the 1970s, as we do not have time to go into it: for all its faults, it was the most equal decade in British history for wealth and income. The consequence of the 1980s legislation has been to reduce collective bargaining coverage from over 80% to something like a quarter today, which is the essential cause of inequality and poverty.

Finally, I thank my noble friend the Minister for her attentive and detailed response. Again, we must agree to differ in our conclusions, but I add that we cannot go on being damned year after year by these international supervisory bodies. There has to be some way of resolving Britain’s non-compliance. With that, I beg leave to withdraw the amendment.

Amendment 239 withdrawn.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Tuesday 3rd June 2025 Lords Chamber

Moved by

[Lord Hendy]

143: Clause 28, page 50, line 6, at end insert—
“(2A) In section 189 (complaint and protective award), after subsection (2) insert—“(2A) Any such declaration may be enforced in the High Court as if it were a declaration of the High Court and, for the avoidance of doubt, such enforcement may include—(a) an Order to comply with the declaration of the employment tribunal,(b) a Declaration that any dismissal which should have been but was not subject to compliance with section 188 or section 188A is void and of no effect, and(c) in relation to any failure to comply with an Order of the High Court, proceedings for contempt of Court.””Member’s explanatory statement
This amendment is intended to provide a remedy for a breach of s.188 or 188A given that the doubling of the protective award appears may be unlikely to deter employers such as P&O Ferries where the value of the protective award can be calculated to be outweighed by the benefit of reduced wages over time.

[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.

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[Lord in Waiting/Government Whip (Lord Leong) (Lab)]

My Lords, I thank the noble Lord, Lord Hendy, for tabling Amendment 143.

The Government agree that employers should not be able to deliberately ignore their obligations, and it should never be financially beneficial to do so. However, this amendment would offer a disproportionate response to address the issue. First, employment tribunals have jurisdiction over the majority of employment matters, including the enforcement of protective awards in cases of collective redundancy. It would not be appropriate to amend this jurisdiction solely for collective redundancy cases and it would lead to a disparity within the legal structure governing employment rights and their enforcement.

Furthermore, Section 15 of the Employment Tribunals Act 1996 already offers routes for affected individuals to pursue unpaid employment tribunal awards via the county courts, for England and Wales, and the sheriff courts, for Scotland. Finally, the amendment may have the unintended consequence of an increase in scenarios where employers are forced to become insolvent in response to both paying a protective award and requiring the reinstatement of affected employees.

Responsible employers across the country already go further than the current obligations to consult collectively. They agree with the Government that collective consultation with their workforce is a valuable tool in finding solutions to some of the challenging situations that employers find themselves in. Clause 29 closes a loophole in our collective redundancy legislation which meant that P&O Ferries could not be prosecuted when it dismissed people without warning, including because they worked abroad on foreign-registered ships. This goes some way to addressing the ILO’s concerns about the lack of an effective remedy. Our measure to confer powers on Ministers to create a mandatory seafarers’ charter will also help to create a level playing field in the sector and prevent such events happening again. A couple of amendments in subsequent groups will address that issue.

Doubling the protected period means that employees who were not afforded any consultation when being made redundant will now be awarded up to 180 days’ pay. Employment tribunals can award a further uplift of up to 25% where an employer unreasonably fails to comply with the code of practice on dismissal and re-engagement. Taken together, these measures increase the potential statutory payout per person far beyond that which P&O Ferries offered to dismissed employees. This clause will provide a balanced approach that gives certainty to employers, employees and tribunals, and will provide an increased deterrence against deliberate breaches of the collective redundancy requirements, without disproportionately penalising employers which attempt to comply with their obligations.

I hope that this provides some assurance to my noble friend, and I therefore ask that his amendment be withdrawn.

[Lord Hendy (Lab)]

My Lords, I am grateful to my noble friend Lord Davies for his support. I am also grateful to the noble Lord, Lord Sharpe, for his contribution. In response to him, I note that the proposal is not that employment tribunals should make a declaration that a dismissal was void and of no effect. Instead, the idea is that the High Court will make a declaration based on another declaration already made by the employment tribunal that the employer has breached the law by failing to consult—or by failing to consult properly.

The remedy I am proposing, since it is going to be in the hands of a High Court judge, will not be granted for technical or administrative errors; it will be for only the most egregious breaches.

On the point that an injunction might be granted months later, that cannot be so because delay will always defeat an injunction. Injunctions are only ever granted if the application is brought in a timely fashion, and whatever the court orders can be fulfilled.

I am grateful for the Minister’s very full response. I am not sure that the measure I propose is disproportionate —it is intended only for the most egregious breaches of the duty to consult—or that it distorts the remedies available for employment matters. As my noble friend pointed out, employment tribunal awards already have to be enforced in the civil courts and not by tribunals themselves. I am not sure about the unintended consequences. I know everything he says about The Seafarers’ Charter; my concern is with those on land. I have heard everything he says with sympathy, and on that basis, I beg leave to withdraw my amendment.

Amendment 143 withdrawn.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Thursday 8th May 2025 Lords Chamber

[Baroness Coffey (Con)]

My Lords, I support the amendments tabled by my noble friends. I am just thinking of my career. I have had quite a conventional career in many ways, but I have also had many extra roles, particularly when I was a student—I am conscious that we will come to Amendment 19B separately later. It is important to reinforce the challenges in starting up or expanding a particular business. It is well said that a coffee shop will know within the first week whether it will succeed. You could argue that there are different factors, but within the first month a business will certainly know whether the footfall and the sale per customer justify the number of people it is employing and adapt accordingly.

As my noble friend Lord Hunt of Wirral mentioned, there is also this extended element about things such as holidays. It may surprise your Lordships to know quite how many jobs are, frankly, based on whether it rains and people cancelling going out to do different things. That is one of the reasons why, in particular but not exclusively, many hotel chains have started having a price differential: basically, you get a better deal if you book up front, but you cannot cancel or get your money back. Indeed, it is why even more restaurants are, effectively, starting to pre-charge an amount of money that is expected so that people do not cancel. Having lived in touch of the coast for most of my life, I can assure your Lordships that the fluctuation in how many people actually turn up to a resort for the day in a town is real, and what that means for temporary jobs.

That is why I think my noble friend Lord Hunt has found a good way of trying to help the Government to consider some of the everyday decisions that employers have to make as to whether they open up in the first place, whether they try to expand, and whether they try to get the growth. If I go further on to Clause 20, at the same time that the Government are trying to encourage businesses to go into artificial intelligence and see all that can be embraced in that regard, they need to bear in mind that businesses will not invest in such technologies if they are concerned that the other costs will be so detrimental to them.

We keep having this Catch-22 situation: if the Government want growth, they need to recognise the success where employers have been given the chance to scope and to be flexible, although I understand entirely the Government’s intent that the employer should be reasonable with the people that they take on. It is for these reasons—and I will speak more in the next group—that I believe that the Government should seriously consider how they operationalise this. We keep hearing about more and more consultations. We have heard people from the British Retail Consortium, from retailers and from hospitality saying that these are the real issues. We are almost doing their consultation for them by putting forward these amendments, so I hope that the Minister will look on them carefully in his consideration.

[Lord Hendy (Lab)]

My Lords, I shall make four short points on these amendments, all of which I oppose. First, the noble Lord, Lord Hunt, suggested that employers would get locked into guaranteed hours. I remind him that all contracts of employment may be varied by mutual agreement or, if not, they can be terminated and there can be re-engagement on fresh terms.

Secondly, the noble Lord mentioned the industrial reality. The industrial reality of zero-hours contracts is a complete disparity of power: 80% of those on zero-hours contracts would prefer a permanent contract, but those on zero-hours contracts are completely at the mercy of the employer. They do not know how many hours they are going to work tomorrow, let alone next week, and they do not know how much income they will make at the end of any week. Therefore, a worker on a zero-hours contract does not want an argument, to fall out or have a disagreement with the employer. That is a vital component of the legislation my noble friend proposes.

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[Lord Hendy (Lab)]

I endorse what my noble friend Lord Davies said a moment ago. A trade union is defined by Section 1 of the Trade Union and Labour Relations (Consolidation) Act, and it is an organisation of workers the primary purpose of which is to regulate relations between employers and workers. That is the only definition. Any body that does that is a trade union. So the sorts of organisations identified in these amendments will be trade unions. But, as trade unions, they have consequential obligations. For example, they have to elect their general secretary and their national executive committee by ballot every five years, and so on. So there are consequences to these amendments. By the way, a trade union defined by Section 1 is not necessarily independent. There are independent trade unions listed by the certification officer and non-independent trade unions. “Independence” has a specific meaning under the legislation.

[Baroness Jones of Whitchurch (Lab)]

Phew—I do not know whether I want to join in this philosophical debate because, clearly, we have heard strong views on both sides, and they have strayed way beyond the amendments we are trying to moderate today. But I would say that the Bill overall seeks to find the right balance between workers, unions and businesses, recognising that each has an important role to play. Our aim in the Bill is to modernise those arrangements for the 21st century so that we are not playing “Yah-boo, you did that back in 1953” but are actually looking to the future. We hope that is what the Bill will deliver.

These amendments aim to broaden the provisions in the Bill to allow employee representative bodies or staff associations to collectively agree to modify or opt out of the zero-hours measures. The Bill already allows these collective agreements to be made, but only by trade unions. As we are allowing for modification of statutory employment rights, it is vital that the appropriate safeguards are in place. This includes that only trade unions that have a certificate of independence, and are therefore free from employer control, can agree with employers to modify or opt out of rights, and that rights are guaranteed in exchange and incorporated into a worker’s contract.

I make it clear that staff associations and employee representative bodies, some of which we have heard described this afternoon, can do really good work, and we welcome engagement between employers and workers in all forms. However, we do not think it is appropriate for these associations and bodies to be able to modify statutory employment rights. This is not least because they may not have sufficient independence from the employers—a point well made by my noble friend Lady O’Grady—unlike independent trade unions, which do have that independence and which offer high levels of protection to workers. Furthermore, there is a well-established framework for trade unions, including recognition, independence and incorporation of terms, and the provisions build off these provisions.

I can see that the noble Lord’s amendments suggest a framework of requirements that staff associations and employee representative bodies would need to meet in order to modify or exclude zero-hours rights. These include requirements around independence, recognition, elections and record-keeping.

However, as my noble friends Lord Hendy and Lord Davies have said, the more you incorporate those requirements, the more you add to a staff association or employee representative body, the more similar it appears to be to an independent trade union. Given that the trade union framework is well established, historically and legally, it is not clear to me that it makes sense to establish a similar but different structure just for the purposes of the zero-hours measures. I am grateful to my noble friends Lord Davies, Lady O’Grady and others for reminding us of the hard-won rights that we have achieved through organisations within the trade union movement. Trade unions already serve to protect and advance the interests of workers.

I felt that the noble Lord, Lord Moynihan, presented a caricature of the unions. For every criticism he has, we could come back with all the advantages that trade unions have delivered for working people over the years in pay and conditions and in some of the fantastic campaigns—for example, around the environment, women’s rights, and so on. They have already contributed enormously to modernising workplace rights, so I do not feel that it would be appropriate or proportionate to try to recreate them. The trade unions already provide the constructive dialogue with employers to which the noble Lord, Lord Sharpe, refers, and membership of trade unions remains voluntary for employees.

I say, too, to the noble Lord, Lord Sharpe, that there is a technical issue around all this. If his amendment was accepted as drafted, it would not achieve the aims that he intends. Collective agreements have a specific definition in the Employment Rights Act 1996, which the zero-hours provisions are being inserted into. The definition, referring to the definition in the Trade Union and Labour Relations (Consolidation) Act 1992, provides that collective agreements are ones between independent and certified trade unions and employers’ or employees’ associations, so there would not be scope in the way that the noble Lord has worded his amendment for a wider definition of employee representatives.

We have had a debate which I have a feeling we are going to return to on some of the other trade union issues, but, for the time being, with this set of amendments in mind, I hope that the noble Lord, Lord Sharpe, will consider withdrawing his amendment.

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[Lord Katz (Lab)]

I thank my noble friend Lady O’Grady for that; I would of course be very happy to write to her and my noble friend Lord Watson on this. The point that we are making is that there is already a mechanism in place to upgrade. That does not mean that it is not something that organisations concerned about the limit of compensation can lobby on, but the amendment as tabled is superfluous; it would not add any powers that are not already in law or in the Bill already.

[Lord Hendy (Lab)]

Perhaps I could add something on that subject. I think that my noble friend suggested that there was one overall cap and that consistency was required, which is the point that my noble friend Lady O’Grady has developed. In fact, there is a range. Unfair dismissal is subject to a maximum per week for two years. Redundancy, which the Minister mentioned, is on a different basis; it is, essentially, one week’s pay for each year of employment up to a maximum of 20. Discrimination is dealt with on a different basis altogether, with no cap at all—it is the amount of compensation. So I do not think that consistency is really an answer. A general review would be very helpful, though.