Employment Rights Bill

Debate between Lord Hendy and Lord Monks

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.

Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022

Debate between Lord Hendy and Lord Monks

Monday 18th July 2022 Lords Chamber

[Lord Monks (Lab)]

My Lords, this SI is the latest in a long line of steps, taken by successive Conservative Governments, to wrap trade unions in ever-more complex and restrictive dollops of red tape. It is almost a rite of passage for each Conservative Administration to slap fresh restrictions on unions. This SI is the latest in a long line. As my noble friend Lord Woodley has said, the Government were supposed to be introducing an employment Bill with new rights for workers—a positive step forward—but where is it? We keep asking, and again I pose that question to the Minister.

The Government were going to tackle the abusive practices of P&O Ferries in sacking staff and replacing them with agency workers, but where has that gone? Instead, they are now encouraging, through this SI, employers in a dispute to replace workers with agency staff. That looks to me like a U-turn, and one that is unacceptable to many of us.

A wiser Government would learn from their own successful experience with the furlough scheme, where they worked closely with unions and the TUC to devise a scheme that did much to see our country through the pandemic in reasonable shape. That degree of wisdom is sadly missing in this exercise we are talking about tonight.

A wiser Government would recognise that the current inflation is not due to wages but to Covid, the war in Ukraine and Brexit-related matters. In fact, our country’s experience is of stagnant wages and soaring profits, with real wages having been pretty flat since 2000, with the exception of executive pay, in the largest companies in particular, which grew during the pandemic alone by 29%. Is it any wonder that there could be an increase in labour unrest in the forthcoming period? Workers have got plenty to be restless about.

A wiser Government would seek to address this situation, not by playing to their own political gallery with this kind of gesture, but instead by seeking to work with unions, employers and all those concerned that might have some way of helping this country through a very difficult economic period ahead. Will the Minister, even at this stage, reflect on the request from many of us here tonight to put this SI in the recycling bin and tackle the real problems?

[Lord Hendy (Lab)]

My Lords, I support the amendment moved by my noble friend Lord Collins. Wages are rising at 4% per annum and prices are increasing at 11% per annum. It is a sad thing that the Government’s response is to take yet further measures to stop workers exercising the only leverage they have to maintain or even improve their standard of living. The Minister frankly admitted this evening that the purpose of the statutory instrument in relation to damages was to deter unions from striking, and that would be achieved by increasing the cap on damages by 400%. The point that I wish to raise with the Minister is that this further regulation of trade union freedom may well put the United Kingdom in breach of its international legal obligations, and it is to that that I will restrict my remarks.

My noble friend Lord Collins mentioned Article 3 of Convention 87 of the ILO, which is the most fundamental of all the ILO conventions, the international standards of labour. Article 3 guarantees that unions and employers’ associations can organise their activities

“free from any interference which would restrict this right or impede the lawful exercise thereof.”

Among the activities that unions must be free to organise is, of course, industrial action. Consequently, the relevant supervisory committee of the ILO—the quasi-judicial Committee of Experts on the Application of Conventions and Recommendations—has said:

“Provisions allowing employers to dismiss strikers or replace them temporarily or for an indeterminate period are a serious impediment to the exercise of the right to strike.”


My noble friend Lord Collins mentioned a decision of the Committee on Freedom of Association to similar effect. The authoritative interpretation of conventions by these committees is recognised not only by the European Court of Human Rights and other courts, such as the Supreme Court of Canada, but by our domestic courts. Those committees have held for some time that, among other non-conformities, British law currently does not comply with the requirements of Convention 87, Article 3 because workers taking industrial action are inadequately protected.

I hope that the Minister is not going to say that he disagrees with the rulings of those two ILO committees. They are the supervisory bodies of Convention 87, and it would sound like the first-year law student who writes an essay saying that he disagrees with a judgment of the Supreme Court. I am sure the Minister will not be saying anything like that.

I wish to make an additional point before I sit down. Breach of an ILO convention is bad enough, particularly one ratified by and binding on the United Kingdom, of which the United Kingdom was the very first signatory back in 1948. Secondly, the EU-UK Trade and Cooperation Agreement of 2021 involved the Government undertaking post Brexit to comply with various international treaties by which they were already bound. The effect is that non-compliance with these treaties is not only a breach of them but is unlawful on the additional ground that it is a breach of the Trade and Cooperation Agreement. Paragraph 2 of Article 399 states:

“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”.

Paragraph 5 states:

“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.”


The UK has the obligation not only to respect and promote Convention 87, but also to effectively implement it. Those obligations surely prevent the UK adding an additional obstacle to the effective exercise of the right to strike by allowing agency strike breakers.