Employment Rights Bill

Debate between Lord Hendy and Lord Leong

Report stage
Wednesday 23rd July 2025 Lords Chamber

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

My Lords, I am grateful to the noble Lord, Lord Jackson of Peterborough, and my noble friend Lady O’Grady of Upper Holloway, for contributing to this debate, and to the noble Lord, Lord Goddard, for setting out the Lib Dems’ position. I will now speak to Amendment 150, tabled by my noble friend Lord Hendy, and Amendments 150AA, 150B, 151 and 152 in the name of the noble Lord, Lord Sharpe of Epsom.

On Amendment 150, we are clear that industrial action should take place only where there is a dispute between a group of workers and their direct employer and we will not change this position. Secondary or solidarity action has been prohibited for several decades and the Government will not change this. Permitting secondary action would enable parties with no direct stake in a dispute to take co-ordinated action, increasing the risk of disruption to employers and the public, and would allow industrial disputes to escalate beyond the original context and across different employers. The Government are clear that we are compliant with our international obligations under ILO Convention 87, Article 11 of the ECHR and Article 6 of the European Social Charter, all of which protect the right to strike but also permit restrictions on industrial action necessary in a democratic society.

As noted by the European Court of Human Rights in the RMT case in 2014, there is a democratic consensus in the UK in support of the prohibition of secondary action and a broad acceptance of the public interest reasons for it, spanning the gamut of political opinion.

Furthermore, the UK is not an outlier. Similar countries such as Australia, Canada, Austria, France and the USA also prohibit or do not protect secondary action. The UK’s model reflects our unique industrial relations framework and economic context, and protects the ability to strike, while also protecting the rights of others. The Government have no intention of changing this.

On Amendment 150AA, 150B and 151, in the name of the noble Lord, Lord Sharpe of Epsom, Clause 73 of the Bill is required because the Supreme Court ruled in April 2024 that Section 146 of the 1992 Act is incompatible with Article 11 of the European Convention on Human Rights. That is because it fails to provide any protection against detriments—that is, sanctions short of dismissal—intended to deter trade union members from taking part in lawful strike action organised by their union or penalise them for doing so. I have no doubt that many Members of your Lordships’ House agree that the UK cannot continue to be in breach of our international obligations. The Bill will correct this by inserting new Section 236A into the 1992 Act, to provide that:

“A worker has the right not to be subjected … to detriment of a prescribed description by any act, or any deliberate failure to act, by the worker’s employer, if the act or failure takes place for the sole or main purpose of preventing or deterring the worker from taking protected industrial action, or penalising the worker for doing so”.


The prescribed detriments will be set out in secondary legislation following a consultation.

These amendments seek to prejudge a full and open consultation on this issue by setting out the circumstances in which the detriment protection—whatever the prescribed detriments may ultimately be—will not apply. Indeed, as part of the consultation, we look forward to hearing the perspective of employers on why they may consider detriments could be appropriate in certain circumstances.

I must also add that, importantly, the protection from prescribed detriment applies only where the sole or main purpose of subjecting the worker to detriment is to prevent, deter or penalise the worker from taking protected industrial action. For example, if a worker is subject to a detriment solely or mainly because they have damaged property, this protection will not apply. Moreover, the criminal law still applies to pickets and others taking part in industrial action, just as it applies to everyone else.

Finally, on Amendment 152, also in the name of the noble Lord, Lord Sharpe of Epsom, Clause 75 seeks to repeal the Strikes (Minimum Service Levels) Act 2023. The repeal of the strikes Act is a manifesto commitment that this Government have a mandate to deliver. Minimum service levels unduly restrict the right to withdraw labour and undermine good industrial relations, and our plan to make work pay pledged to repeal the Act. No work notice has ever been issued by an employer to seek to meet a minimum service level during strike action, and the legislation has never prevented a single day of strike action. Evidence suggests that this is due to employer concerns around worsening industrial relations and the complexity of implementing a minimum service level under the legislation. This demonstrates the futility of that Act and why we intend to repeal it upon Royal Assent.

We believe that negotiation and co-operation are better ways to ensure essential services continue during any industrial action, while respecting workers’ rights. Evidence given at the time the strikes Act was being introduced, including from employers, was that existing voluntary arrangements worked and ensured that vital services were able to continue during periods of industrial action. We are simply returning to this situation. We want to reset the relationship with both employers and trade unions to resolve disputes through meaningful negotiations. Repealing the rights of the strikes Act will help us to achieve that. I therefore respectfully ask my noble friend Lord Hendy to withdraw Amendment 150.

[Lord Hendy (Lab)]

My Lords, I am very grateful to all noble Lords who spoke in the debate on my amendment. I have a couple of words by way of reply.

I point out to the noble Lord, Lord Jackson, that the P&O Ferries scandal was not the basis of the argument that I advanced to the House but simply an egregious example of the absence of the right to take secondary action. Noble Lords will recall that that case involved some 800 seafarers who were sacked instantaneously and replaced immediately with agency crews recruited in third-world countries. In doing so, P&O Ferries knowingly and intentionally broke the law. It could do so because it knew exactly how much compensation it was liable for, and it paid it. The unions, on the other hand, were unable to call on fellow workers in the Port of Dover and other cross-channel ports to support them in an industrial dispute to reverse that decision. The seafarers themselves, of course, were on the stones; they were unemployed. A strike by the direct workforce would have been completely pointless. I mentioned it because that is the last example of the ILO commenting on the UK ban on secondary action. It said that the Government and social partners should sit down together and endeavour to negotiate some form of permissible secondary action. The ILO has been consistent on the position since 1989, repeatedly saying that the 1990 law to which my noble friend Lady O’Grady referred was incompatible with Convention 87.

The noble Lord, Lord Jackson, pointed out various circumstances, which I will not debate with him now, that would make the return of secondary action in this country unacceptable. The point is that special circumstances are not a legitimate justification for a state not to comply with its international obligations. That point was made clear by the noble and learned Lord the Attorney-General in a speech that he made about a month ago, but it is a fundamental principle of international law.

Finally, I say to the noble Lord, Lord Jackson, who commented on the suggestion that the phrase “connected with” ought to be brought back, that phrase is the one that was deployed in the original drafting of the Trade Disputes Act 1906.

I thank my noble friend Lady O’Grady for her support and for reminding the House of the fragmentation in employing enterprises, often precisely to achieve and exploit the bar on secondary action, to weaken workers. I thank the noble Lords, Lord Goddard and Lord Hunt, for their comments.

To the Minister, my noble friend Lord Leong, I make three quick points. First, I am afraid I do not agree with his comparative law analysis. I have done some work on this over the years, and it is not the case that the countries that he mentioned bar secondary action—at least, not all of them do, although the United States does. Secondly, I accept, as I did in Committee, that we are not in breach of Article 11 of the European convention, but I simply cannot see how it can be argued that we are not in violation of ILO Convention 87 and the European Social Charter’s Article 6.4. The supervisory bodies have said so over and over again. Thirdly, of course I recognise the Government’s position, and my noble friend will not be surprised to hear that I do not intend to test the opinion of the House. I respectfully ask to withdraw my amendment.

Employment Rights Bill

Debate between Lord Hendy and Lord Leong

Committee stage
Tuesday 3rd June 2025 Lords Chamber

[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.