Employment Rights Bill

Lord Hunt of Wirral Excerpts

Committee stage
Monday 16th June 2025 Lords Chamber

Moved by

[Lord Hunt of Wirral]

247: After Clause 70, insert the following new Clause—
“Workplace intimidation in regard to balloting (1) The Employment Relations Act 2004 is amended as follows.(2) After section 54(12)(c) insert—“(d) measures are in place to prevent workplace intimidation.””Member’s explanatory statement
This new clause requires the Secretary of State to consider whether there are sufficient measures to be in place to prevent workplace intimidation before they make any order to allow balloting to take place by a means other than by posted ballot.

[Lord Hunt of Wirral (Con)]

My Lords, Amendments 247, 248 and 250 stand in my name and in the name of several of my noble friends. Amendment 247 requires the Secretary of State to consider whether sufficient measures are in place to prevent workplace intimidation before approving any balloting method other than postal ballot.

I believe the postal ballot has served as a cornerstone and a guarantor of democracy for good reason: it provides privacy, anonymity and time for reflection. Workers receive their ballot papers at home, and can consider the issues away from workplace pressures, mark their ballot in complete privacy and return it without anyone knowing how they have voted. This system has protected workers from intimidation for generations. Alternative balloting methods, while potentially more convenient or faster, create new possibilities for intimidation that simply do not exist with postal ballots. When voting moves into workplace environments and on to devices that can be observed, we fundamentally change the dynamic of how workers participate in crucial decisions about industrial action.

Consider workplace balloting stations. Denied the privacy of home voting, workers might find themselves voting in break rooms, meeting rooms or other workplace locations where colleagues, supervisors, or even union officials can observe who is participating and when they are voting—and potentially seek to influence their decision through presence alone. The queue to vote becomes visible; the time spent considering options becomes observable; and the act of voting transforms a private decision into a semi-public one. Electronic balloting presents its own challenges. They might use personal devices in workplace settings where screens can be observed or where pressure can be applied to vote immediately rather than after proper consideration. The technology that enables quick voting can also enable quick pressure.

Each of these alternative methods, while offering potential benefits in terms of speed and convenience, also creates vulnerabilities that postal ballots simply do not have. The private space of the home; the sealed envelope; anonymous returns—these features of postal balloting provide protections that we must be careful not to lose as we embrace new technologies and methods.

We simply want assurance that, before any alternative balloting method is approved, proper safeguards exist to prevent intimidation scenarios. These might include requirements for private voting spaces, prohibitions on observing voting, secure systems that protect voter anonymity, or cooling-off periods that prevent immediate pressure to vote on the spot. Workers should be able to vote according to their genuine views about proposed industrial action, free from any form of pressure or intimidation, regardless of the source.

The employee who has concerns about strike action, or worries about lost wages, or simply needs time to consider the implications should be able to participate in balloting without feeling rushed or being observed. This protection is particularly important because industrial action ballots directly affect workers’ livelihoods. These are not abstract political decisions. They are choices about whether to risk wages, potentially face disciplinary action, or take steps that could affect their employment. Workers deserve the space and privacy to make these difficult decisions according to their own circumstances and conscience.

Amendment 248 takes a clear and necessary step to protect the fundamental principle of democratic voting by prohibiting balloting taking place in the workplace. This would prevent the Secretary of State making any order that would allow trade union ballots and elections to be held in workplace settings. The workplace is fundamentally incompatible with free and fair democratic voting. When balloting moves into the workplace environment, we create a setting where the very people who have power over workers’ daily lives, career prospects and working conditions, can observe, influence and potentially intimidate voters during the democratic process.

This prohibition recognises a simple truth: the workplace is not a neutral space. It is not a safe space for democratic participation; it is an environment structured by power relationships, hierarchies and dependencies that can compromise the integrity of voting. When workers must cast ballots surrounded by colleagues, supervisors, union officials or managers, the essential privacy that democracy requires is fundamentally undermined.

Consider what workplace balloting means in practice. Workers would be voting in break rooms, where conversations could be overheard; in meeting rooms, where attendance could be monitored; or in common areas, where voting behaviour becomes visible to everyone present. The simple act of participating or not participating in a ballot becomes observable workplace behaviour, rather than a matter of private and democratic choice. The physical presence of authority figures during workplace balloting creates inherent pressure. Union officials can observe who votes enthusiastically and who hesitates. Shop stewards can monitor participation levels and, potentially, identify workers who seem reluctant to engage. Supervisors, even if not directly involved in the balloting process, may become aware of industrial action votes taking place on their premises during work hours.

This pressure operates both explicitly and implicitly. Workers may feel compelled to demonstrate loyalty or enthusiasm through their voting behaviour when that behaviour occurs in workplace settings. The colleague who takes time carefully to consider ballot questions may be seen as insufficiently committed. The voter who votes quickly may be assumed to be following group pressure rather than individual conscience.

Workplace balloting also creates logistical pressures that can compromise democratic participation. Workers may feel rushed to vote during limited break times or lunch periods. They may worry about being seen as taking too long away from their duties. The natural rhythm of workplace life—shift patterns, busy periods and urgent deadlines—can interfere with the thoughtful consideration that democratic voting requires.

Amendment 250 would introduce a crucial requirement for transparency and accountability in industrial action by requiring trade unions to conduct and publish economic impact assessments and family tests before balloting their members on strike action. It would require trade unions to take three essential steps before any ballot for industrial action can take place: publishing an economic impact assessment; publishing a family test on the impact of industrial action; and informing their members that these reports have been published. That would ensure that workers had access to comprehensive information about the broader consequences of proposed industrial action before they cast their votes.

The case for impact assessments is compelling when we regard the real-world consequences of industrial action. For example, in 2023 the RMT union estimated that its industrial action had cost the UK economy £5 billion. The Office for National Statistics reported that during those 16 days of NHS strikes between December 2022 and February 2023 at least 93,000 out-patient appointments, 18,000 elective procedures, 9,500 mental health and learning disability appointments and around 28,000 community service appointments had to be rescheduled because of strike action. That had a significant impact on people who were in urgent need of important support.

The ongoing Birmingham bin strikes provide a stark illustration of how industrial action can affect whole communities. Birmingham City Council declared a major incident after 17,000 tonnes of rubbish were left uncollected on the streets, requiring assistance from not only other local authorities but even Army specialists for logistical support.

The strike has disproportionately affected lower-income and inner-city areas, such as Sparkhill, Balsall Heath, Small Heath, Sparkbrook and Ladywood, where refuse has piled up to a greater degree than in more affluent suburbs. The health implications have been severe: uncollected waste has the potential to create not only nuisance for the community from flies and vermin, but public health risks. The policing costs alone have been substantial, with the costs of policing the Birmingham waste dispute reaching almost £1 million.

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The Bill will still require trade unions to ask the members on the ballot paper for industrial action which type of industrial action they want to take part in, expressed in terms of whether this is strike action or action short of a strike. Ballots will also continue to be independently scrutinised. This will help ensure that trade union members are able to make informed decisions when voting on proposed strike action. In light of this, I therefore ask the noble Lord, Lord Sharpe of Epsom, or indeed the noble Lord, Lord Hunt of Wirral, to withdraw Amendment 247.

[Lord Hunt of Wirral (Con)]

My Lords, I am very grateful to my noble friend Lord Jackson of Peterborough. I had not thought, when preparing my address, to look back to 1834. The only time I ever talk about 1834 is recalling that on 16 October 1834, this whole place burned down and gave rise to the new mother of parliaments we know today. Only Westminster Hall survived that terrible fire in 1834.

All I will say about the Tolpuddle Martyrs who were sentenced to be sent to Australia is that two years later they were pardoned, and they all went to Canada; I think Canada benefited hugely from that exodus. But I am not quite sure that we can read across because so much has changed, as the noble Baroness, Lady O’Grady of Upper Holloway, reminded us.

The noble Baroness also referred us back to the coalition—it was not a Conservative Government but a coalition in 2014—and cited Bruce Carr KC, who I respect hugely. He is a brilliant advocate in this whole field of employment law, but I am not quite sure that I read across in the way the noble Baroness did.

I agree with the noble Baroness, Lady Kramer, that it is all a question of balance. We have to try to do our best to get the balance right but, as we draw the debate on these amendments to a close, I want to say how sorry I am that the Government declined to accept these modest but essential amendments, although I pay tribute to the noble Lord, Lord Katz, for saying that they are well intentioned. Of course they are, because they are rooted not in ideology but in common sense, democratic principle and a genuine concern for those people who will be affected most by this legislation.

Throughout this short debate, we have tried to put across the case that industrial action is not just a technical but a deeply human process. It involves individuals making weighty decisions that affect their income, their job security, their families and the wider community. That is why the processes we set in place to govern these decisions must be fair, private and informed.

We argue in these amendments that workers deserve to vote on industrial action in conditions that are free from coercion or surveillance. We said that the workplace, structured as it is by hierarchies and power dynamics, is not and cannot be a neutral environment for democratic expression. I do not need to go back to the 1970s but, of course, that is when I entered Parliament for the first time, and we saw a lot of decisions made in the workplace that people regretted afterwards.

I ask the Government to consider the very real risk of intimidation, whether explicit or subtle, and to preserve the privacy that postal balloting has long guaranteed. We were not asking the Government to turn the clock back on technological progress; we were just saying that any movement away from the postal ballot has to be accompanied by genuine, enforceable safeguards. Yet, sadly, the Minister refused to accept even the simple premise that the method of voting matters—that how a person votes is as important as the person for whom they are voting.

We also asked for transparency. Through Amendment 250, we sought to ensure that unions undertaking industrial action do so with an honest reckoning of the broader consequences—economic, social and familial. We know that strikes do not happen in a vacuum; they ripple outward, touching the lives of patients, parents, commuters, businesses and whole communities. I certainly do not want to prohibit strikes, but we believe that workers have to be given the full picture before they make a serious decision to withdraw their labour.

I am particularly disappointed because these amendments would strengthen the public’s confidence in this legislation. They would have shown that Parliament is serious about protecting not only workers’ rights but democratic process, public welfare and social responsibility. Instead, the message is now that efficiency is more important than privacy, that speed matters more than integrity, and that the consequences of industrial action—no matter how far reaching—need to be honestly appraised before the strike begins.

All I will say in conclusion is that the debate does not end here. I do not believe that these concerns will go away. The consequences of inaction, the risks of intimidation, the lack of transparency and the damage to public trust will, in time, make themselves known. When they do, I hope the House will remember the case that we have made today. In the meantime, I beg leave to withdraw the amendment.

Amendment 247 withdrawn.

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[Lord Hunt of Wirral (Con)]

My Lords, I thank the noble Lord, Lord Prentis of Leeds, for describing this amendment to us. It is simple and easy to understand but founded on a very difficult and testing industrial dispute. Looking back over my time as a parliamentarian, I often found that facts get distorted, beliefs underpinned and positions entrenched. The last thing that should ever happen is an overt change in the law. I do not believe that is necessary. Let me explain why.

The Minister should not support this amendment, which, as the noble Lord, Lord Prentis, explained, seeks to extend Section 145A of the Trade Union and Labour Relations (Consolidation) Act 1992 to cover the exclusion or omission of a worker from an offer on grounds related to trade union membership or activity. While the noble Lord presented this amendment as a measure to strengthen workers’ rights and reinforce freedom of association, in reality, on reflection, as he virtually admitted when he introduced it, it is poorly drafted, conceptually flawed, legally confusing and potentially deeply damaging to the legitimate and practical functioning of workplace relations.

At its core, the amendment misunderstands the balance that needs to be struck between protecting the rights of trade union members and preserving the autonomy of employers to make operational decisions in good faith. The current law already provides robust protections against unlawful inducements that seek to undermine collective bargaining. I recall, because I was in government at the time, that Sections 145A and 145B were carefully crafted to target deliberate attempts by employers to bypass or undermine collective agreements. This amendment goes significantly beyond that, seeking to introduce for the first time in statute a wholly ambiguous and legally unstable concept—exclusion from an offer—without providing any meaningful guidance or definition as to what such exclusion means, how it is to be assessed and in what contexts it is to be deemed unlawful.

An offer, by its very nature, is made on the basis of specific criteria—sometimes economic, sometimes strategic and sometimes tied to an individual’s performance or to business need. To say that a worker has a right not to be omitted from any offer and to link any such omission to trade union membership or activity would place an intolerable burden on employers. It would open the door to speculative claims and second-guessing of decisions that may have been made for entirely legitimate and neutral reasons, relying on an inference of motive in the absence of solid evidence. Effectively, it demands that employers should treat all workers identically in every instance of any offer—whether it is financial, procedural or preferential—or face litigation and the reversal of the burden of proof. Let me explain.

The amendment proposes that in any case brought under the new Section 145A(1A), it will fall to the employer to demonstrate the grounds upon which the worker was excluded. That is a fundamental reversal of the ordinary legal principle that a claimant must prove their case. It turns routine management discretion into presumed unlawful conduct unless proven otherwise. Such a reversal may be appropriate in narrow cases where discrimination is clearly alleged and supported by a pattern of conduct, but to write it into statute so broadly and in such general terms is not only disproportionate, it is potentially destructive to employer-employee trust and clarity. No employer, however well intentioned, will be able to manage negotiations or individual agreements with confidence under such a regime.

Furthermore, the amendment also risks creating legal confusion by overlapping with other provisions already in place to protect against victimisation or unfair treatment. Section 146 already protects against detriment related to trade union activities. Section 145A already prohibits inducements that would bypass collective bargaining. If the goal is to ensure fair treatment of trade union members, the proper route is through targeted enforcement of those provisions, not through the introduction of vague and speculative new rights that overlap and conflict with existing law.

The amendment is also unbalanced in its approach. It fails to consider that there are many reasons why an individual might not be included in an offer that are entirely unconnected to trade union status. It might be on account of their role, their location, the timing of their employment or performance-based factors. Yet under the proposed amendment, a worker could simply allege that their omission was because of trade union membership or activity, and the burden would shift entirely to the employer to justify its actions. That is not just an invitation to abuse; it is a structural distortion of fairness in employment law.

It must also be acknowledged that this amendment could have chilling effects on legitimate collective bargaining. Employers may feel compelled to make across-the-board offers rather than engaging in more flexible, targeted negotiations that take into account differences in role, responsibility or need. That could undermine not only business efficiency but also the ability of unions themselves to secure advantageous outcomes for specific groups of members. The very act of negotiating special terms for one group might now trigger complaints from others, citing this amendment as grounds for a claim of exclusion.

In conclusion, let me be absolutely clear: freedom of association is a vital right and must be protected. I do not believe, however, it would be served by new laws that are unclear, that burden employers without cause or that generate more confusion than clarity. This amendment—despite its rhetorical appeal to equality and fairness—will in practice be a blunt and imprecise instrument, increasing litigation, reducing operational flexibility and contributing little, if anything, to the genuine promotion of union rights. I hope the Minister will agree with that.

[Lord Leong (Lab)]

I thank the noble Lord, Lord Hunt, for his lengthy contribution. All he had to say was, “I do not support the amendment”. I thank and appreciate my noble friend Lord Prentis of Leeds for tabling Amendment 253A, which sets out that workers have a right not to be omitted from an offer by their employer because, among other reasons, they are trade union members. This amendment has been laid in response to a particular matter regarding the housing association Livv Housing Group, which last year reportedly made a pay offer to only those members of its workforce who confirmed that they were not trade union members. I am pleased that this matter has now been positively resolved in the workplace, as set out by noble friend.

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[Baroness Coffey (Con)]

My Lords, this whole group of stand part notices is basically about the removal of powers from the certification officer. We have already debated Clause 77. In thinking through what is going on here, I wondered whether there would be anything of a certification officer left, because it feels like a lot of this stripping out of certain aspects—for example, in Clauses 79 to 83—is very limiting in terms of what could be left to be done.

Since the Trade Union Act 2016 came into effect, the world has somewhat moved on in terms of transparency and wanting to know what is going on in an organisation. I appreciate they are not state bodies, but trade unions play an important role in our country. It is important that, while recognising there is a declining membership, not in the public sector but in the private sector, for those people who are contributing money every week, every month, every year—whatever it is—having a good amount of information in a consistent way is a good thing in terms of thinking about how we promote aspects of transparency.

We have had considerable debate, as I say, about Clause 77. But I am struggling to understand what the issue really is—why it is so difficult for these things to be produced. In thinking about investigatory powers, let us put a bit of reality or real life into this. There has been a situation within the last six months where an election for the general secretary of the Fire Brigades Union happened. On a 29% turnout, a person was elected. That turnout of votes equated to something like fewer than 10,000 people casting their votes in favour of that candidate. However, it was subsequently discovered that 3,000 ballot papers were not issued. I am happy to be corrected if I am wrong, but the difference between winning and losing was less than 3,000. Understandably, the person who lost, who had been in post for nearly 20 years, was somewhat aggrieved. However, when it was decided there had obviously been a breach and something had gone wrong, the certification officer went through a proper process. The Government may well argue that it would have been safer to email out ballots, or do an online ballot, rather than relying on the post. I am sure the union staff were not the only people struggling with things not being delivered by Royal Mail at that time. However, after that process, the losing candidate chose not to require the election to be rerun, which would have been within the gift of the certification officer. In terms of general justice, without having to go to the expense of going to the High Court, a certification officer was a simple way to try to remediate something that was clearly unfair.

However, the person who lost—I am not going to name them—was then very quickly appointed general secretary of another trade union. This time, that was challenged directly by the union’s members. In that instance, I think they went not to the certification but immediately to the High Court. So, one person having lost an election, another trade union—that is the teaching union—used its procedures incorrectly to put them in place as its new general secretary. Then, thanks to the legal challenge, the executive committee of that union recognised that it had not acted properly. This same person, by the way, is still acting general secretary of that trade union. The election commences on Thursday; it is up to the members who they decide to vote for, of course.

I looked at the fairness of a variety of the decisions that the certification officer made over time, and the same teaching union was in breach a few years ago because its general secretary outstayed their elected term. They were then made an acting general secretary and, about a year later, there was another election. It is very expensive if trade union members have to go to the courts over these sorts of things. As I researched these clauses and found out what has happened in real life, it reminded me somewhat of Animal Farm, and how—what was it?—“Two legs bad, four legs good” evolved over time to suit the needs of those who decided that they would be in charge.

I appreciate that trade unions might feel that we should not need to have a certification officer, but these are good examples of where people have had recourse to an independent person who, by law, is not subject to ministerial direction. Those people can have complete confidence in the integrity of the certification officer, and that going to them will lead to somebody having a look, without the cost of going to the High Court—as we know, that is expensive. I understand that Labour has this mantra that it is going to repeal anything to do with the 2016 Act, but I really want the Government to consider why, seeing some of the changes that have happened. By the way, at the same time, they are bringing in different rules for employers in dealing with their employees. It is perfectly valid for them to do so, but just imagine the impact these sorts of stories have. It so happens that both the trade unions in my examples are public sector unions, and we have seen their overall membership increase, but we should not be surprised if lack of confidence has started to drift people’s concerns away on why they need to pay to be a member of a trade union.

I wish the Government would consider carefully what the removal of any of these clauses would do to help the average worker and the average trade unionist, who may not be highly connected and may not have chosen to join a political party or to dedicate their lives, from quite an early age, to being part of that trade union leadership. They should also think about, and this is one of the reasons why I got triggered, what happens when somebody completely left-field—or right-field, whatever—comes in and their union’s ruling body decides, “Yeah, we like the look of that person” and they are not sure why; it may have felt sorry that he had just lost an election elsewhere. Let us think carefully about whether it is the right approach to remove all these powers from the certification officer, which I think people from every level can see are used, rarely and not extensively, to apply some common sense.

[Lord Hunt of Wirral (Con)]

My Lords, I will speak in support of my noble friend Lady Coffey. I thank her for bringing forward these crucial amendments to oppose Clauses 76 and 78 to 83 standing part of the Bill. In doing so, she not only upholds the integrity of trade union regulation but calls out a deeply troubling double standard in the Government’s approach to industrial relations.

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[Lord Fuller (Con)]

My Lords, I support this amendment, but not for the reasons my noble friend gave. Many years ago—Members on the Government Benches may realise quite how long ago this is when I give the names of the unions concerned, which are long since consigned to history—I was the director of a small haulage firm. It no longer exists or trades, but I cut my teeth on labour relations behind the wheel.

In our small business, which employed about 50 people, there were three types of worker: those who were not in a union at all, a small number who were with the TGWU—that dates me—and those with a new union, the United Road Transport Union. The shop steward of the URTU came to see me and said: “It’s like this, John. I think that you should recognise our union”. So I did. It was personally convenient to deal with one person rather than try to have a mass meeting with 30 or 40 people, all with different views. Unlike what some noble Lords might think of those on the Conservative Benches, I found a huge amount of value in being able to negotiate with the URTU, which had the most members but was not entirely pervasive in our company. Arthur Harris was in the TGWU—he was such a long-standing member of our business that he was employee no. 1 on our payroll system—and was not about to go to the URTU for a moment.

The point of this story is that I negotiated in good faith with the URTU and recognised that it had the most members. When making an agreement, we were somewhat apart but not completely, and I said: “Peter, put this offer to them and let’s see what they say”. He did not really want to, but the point is that I needed to make the offer as well to the other union, the TGWU, and to those members who were not in a union at all.

My noble friend made the point about the Port of Felixstowe and I inferred from her remarks that there was a single union to deal with, but that is not the landscape for many organisations. Later this evening I will talk about my experiences in local government, where there are three different unions involved—UNISON, Unite and the GMB—and a complicated negotiating environment.

I support this amendment because it provides equality to the smaller unions, not just the big ones, some of which have their own agendas. It is incumbent on all unionised labour to at least see what is on the table, whether or not their union negotiated it. That is why my noble friend’s Amendment 257A is very important and should be given proper consideration; it recognises the complex labour landscape found in many companies, particularly in private business, not just the monolithic larger organisations where there are single unions, facility time and other things.

[Lord Hunt of Wirral (Con)]

My Lords, I strongly support my noble friend’s amendment, which, as she explained, addresses a fundamental democratic deficit in our current industrial relations framework. I thank my noble friend Lord Fuller for giving his personal experience of how important this deficit can be if it is not addressed.

This amendment would require trade unions to present any employer offer to their membership for a vote, regardless of whether the union leadership supports it. My noble friend gave the example of Felixstowe; others could give similar examples, such as what has been happening with the Birmingham strike. This is not an anti-union measure—it is a pro-democracy measure that seeks to strengthen the voice of individual workers within the collective bargaining process. It recognises that in a democratic society it should be workers themselves, not union officials, who decide whether an employer’s offer meets their needs and aspirations.

The principle underlying this amendment is simple and would be seen as uncontroversial in any other democratic context: those affected by a decision should have the right to make that decision for themselves. When union leaders can simply reject employer offers without consulting their membership, they effectively deny workers the fundamental right to democratic participation in decisions that fundamentally affect their livelihoods. We would surely not accept a system where parliamentary leaders could reject government proposals without allowing MPs to vote. We would not tolerate local councils where executives could dismiss motions without having to present them to councillors. The same should surely apply to trade unions.

This amendment recognises that the priorities, circumstances and risk tolerances of individual workers may differ from those of their union leadership. A young worker saving for a house deposit may take a very different view of sustained strike action from that of an established worker nearing retirement. A worker in precarious financial circumstances may prefer settlement on reasonable but suboptimal terms to prolonged uncertainty and loss of income. Surely we all want to avoid a situation where workers are denied a voice in decisions that so profoundly affect their lives.

Contrary to weakening collective bargaining, this amendment would strengthen it by increasing member engagement and ensuring that union positions truly reflect membership priorities. When workers know that they will have the final say on offers, they are more likely to engage with the bargaining process and provide clear guidance about their priorities. Enhanced member involvement can improve union negotiating positions by ensuring that they are based on genuine membership preferences rather than leadership assumptions. It can also increase employer confidence in the bargaining process by ensuring that negotiated agreements will not be undermined by membership rejection.

Although many trade unions always act in good faith when considering employer offers, this amendment would put protections into legislation to prevent bad actors denying workers their democratic voice. Without legislative safeguards, the system could enable a dangerous information asymmetry where union officials control what information reaches members and the manner in which that information is presented.