Employment Rights Bill

Lord Leong Excerpts

Committee stage
Wednesday 21st May 2025 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I join the general congratulations offered to the noble Baroness, Lady Smith of Llanfaes, on her very comprehensive introduction of these amendments; she deployed some incredibly powerful examples.

We are all in agreement that violence and harassment, particularly sexual harassment and gender-based abuse, have absolutely no place in any workplace. Every worker, whether in an office, on a site or working remotely, deserves to feel safe, respected and protected. Tackling those issues must remain a top priority.

The amendment before us seeks to introduce stronger duties on employers to prevent and respond to these harms. Measures such as risk assessments, training and clear reporting systems can be important in building a workplace culture where abuse is not tolerated and victims are supported, so we absolutely understand the intention behind the amendment.

Although we agree that there is a need for action, we do not believe that the Health and Safety Executive is the right body to enforce these new responsibilities. That is not meant as a criticism of the Health and Safety Executive; it is simply a recognition that there are fundamentally different areas of concern that we think require a different kind of regulatory response. That is not the same as saying that we do not support the intentions of the amendment.

We do not support Amendment 100. We need solutions that deliver real protections to address sexual harassment. Finally, I have to say, from a very personal point of view, that I completely agree with my friend, the noble Baroness, Lady Fox, and her reservations about proposed new subsection (3B).

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

My Lords, first, I thank the noble Baroness, Lady Smith of Llanfaes, for her patience and apologise to her that it has taken until our fifth day in Committee for her to introduce her amendments. I thank her again for Amendments 99 and 100.

I assure the noble Baroness and all noble Lords that the Government are fully committed to protecting workers from workplace violence and harassment. This is a top priority for this Government, with our manifesto commitment, as mentioned earlier by the noble Baroness, to halve violence against women and girls in a decade. In response, I am happy to say that we already have a strong and, in the Government’s view, appropriate regulatory framework in place that ensures that workers are protected from such risks.

I refer to the Health and Safety at Work etc. Act. Under the statutory provisions made under the existing Act, employers have a very clear duty to protect their workers from health and safety risks, including workplace violence. Employers are required to assess and take appropriate steps to eliminate or reduce this risk. The Health and Safety at Work etc. Act, along with other related legislation, also mandates employers to take measures to reduce the risk of workplace violence.

As part of this, the Management of Health and Safety at Work Regulations 1999 require employers to assess risks in the workplace, including the potential for violence, and to take suitable action to reduce or eliminate this risk. The Health and Safety Executive—HSE—and local authorities are responsible for enforcing the Health and Safety at Work etc. Act and carry out both proactive and reactive measures to ensure that employers are complying with their duties. This includes ensuring that employers assess risks and implement appropriate measures to protect their workers and anyone else affected by their work from workplace violence. The HSE has also published accessible guidance on its website to help employers comply with their legal obligations. It also works very closely with other regulators to promote co-operation, share intelligence and, where appropriate, co-ordinate joint activities.

In the noble Baroness’s proposed amendments, there is a request for HSE to publish a health and safety framework specifically focused on violence and harassment in the workplace. Employers already have duties under the Management of Health and Safety at Work Regulations to ensure they have sufficient arrangements in place to manage health and safety risks in the workplace, including violence and aggression. Although workplace harassment could be addressed under the Health and Safety at Work etc. Act, the HSE does not intervene where there is a more appropriate regulator or where more directly applicable legislation exists.

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[Lord Russell of Liverpool (CB)]

I am grateful to the Minister for laying out the plethora of different types of Act and instrument that are meant to be woven together into a seamless whole to stop abuse in the workplace happening. He started off by mentioning an Act passed 51 years ago. He then talked about regulations enacted 26 years ago. He then spoke about the harassment Act of 18 years ago and the Equality Act of 16 years ago. With the greatest respect, if the combination of these regulations has been in force for as long as they have been and we are in the situation we now find ourselves in, with the evidence of what is happening in a variety of workplaces, large, medium and small, clearly all is not well.

The idea of bringing forward amendments such as these is not that they are word perfect from the word go. Everybody in the House knows that perfectly well. Committee is to probe; to try to see if we can come to agreement across the Chamber that it ain’t working and we need to do something better. With the best will in the world, standing up and trying to defend the status quo, when the status quo quite clearly is not working as it is meant to do in theory, is not helping anybody. So, I again ask and suggest—and I am sure the noble Baroness will say this when she responds to the Minister—that we accept that it is not working properly and that it would be a no-brainer to try to work together, across this House and with another place, to see if we can use this Act as a way to improve on what clearly is not working at the moment.

[Lord Leong (Lab)]

I thank the noble Lord, Lord Russell of Liverpool, for that, and I hear what he says. But I stress here, with all the current legislation in place, that there must have been cases before us that we can learn lessons from. What we need to do, and do better, is use “black box thinking”, where we can learn from what has happened and hopefully share with other regulators what works and what may not have worked, so that we can address a problem rather than bring in more legislation. We can look at what has been successful and share those successes among other enforcers as well.

I conclude by saying that the Government remain committed to raising awareness of this important issue. I can confirm that the Minister, my noble friend Lady Jones, has already met with Minister Jess Phillips and Alex Davies-Jones, and we continue to work with them to try to see how we can come together on this. I therefore respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Smith of Llanfaes (PC)]

My Lords, I thank everyone who has spoken in this debate. I am grateful to those who have shown support for these amendments and also those who support the outcome these amendments are trying to achieve. I will reflect on what we have discussed in this debate today, ahead of Report.

On the point made by the noble Baroness, Lady Fox, about a “gender-responsive approach”, I can clarify what that entails. The amendment addresses the different situations, roles, needs and interests of women, men, girls and boys in the design and implementation of activities.

As we have hit on during this debate, the status quo is clearly not working. I know that the Minister outlined in his response the preventative measures being put on to employers. But, as I have explained, those preventative measures are not actually preventative, because you have to prove your sexual harassment claim in order for it to be a breach. Even in the language we use about what is currently in place, it is not preventative. I welcome further discussion with the Minister following this, and hopefully we can come to an agreement on how we can bring this forward within the wider approach.

I will withdraw my amendment today, but I retain my right to bring back further amendments on Report. I hope that His Majesty’s Government reflect on this debate and that we can engage further on this matter. I beg leave to withdraw my amendment.

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[Lord Hunt of Wirral (Con)]

My Lords, this has been such a valuable debate, for a number of reasons. We are grateful to the noble Lords, Lord Aberdare and Lord Knight of Weymouth, and the noble Baronesses, Lady Wolf of Dulwich and Lady Garden of Frognal. In many ways, it gives us an opportunity just to see where we are going, and to identify the fact that, for many of us, apprenticeships mean something deep and profound.

I am delighted to see the noble Lord, Lord Monks, in his place. He probably will not remember but, 32 years ago, he came to see me when I had responsibility for this area of policy. Accompanying him was the noble Lord, Lord Jordan, and they said to me, as Secretary of State for Employment, that apprenticeships needed to be brought into the modern age and that there had to be something deeper, wider and more productive for the individual than the idea of standing by a machine for five years and then qualifying. They were talking particularly of young apprentices. I was persuaded, and, slowly but surely, modern apprenticeships have evolved.

I do not think that the noble Lord, Lord Monks, remembers this, but that was followed by a cartoon in the Guardian, which my children still show me—I should not talk like this on my birthday. The cartoon demonstrates me getting into a large four-poster bed with the noble Lord, Lord Monks, who was in the form of a large cart-horse—the cart-horse had the face of John Monks. This gives me an opportunity to apologise to the noble Lord. I suppose that the Guardian was saying that it looked as though the Conservative Government were listening to the TUC. We did, and modern apprenticeships have taken off ever since.

The levy though, as the noble Baroness, Lady Garden of Frognal, reminded us, has shifted the emphasis and the whole intention, which was to encourage younger people to get more involved. In a way, we need to identify that—and I hope that the Minister will recognise that apprenticeships are the lifeblood of the new economy, in particular, provided that they receive that special status. It was very helpful that my noble friend Lady Coffey reminded us about age, and that perhaps 25 is a better age in this regard. My noble friend Lady Stowell of Beeston also put it much more into context, and the noble Baroness, Lady Watkins of Tavistock, gave an additional dimension. It has been a valuable debate.

I remind the Minister that we are talking about specific instances where there has to be an apprenticeship contract containing often wide-ranging provisions but giving security and opportunity. So it is a balanced and measured amendment that acknowledges the critical reality that apprenticeships are not just simply jobs—they are a structured training programme, often the very first experience that a young person has of the workplace. For many of these individuals, particularly those youngsters, an apprenticeship is a gateway not just to employment but to the habits, responsibilities and expectations of adult working life.

We are already in a time, as many of my noble friends pointed out, when young people are struggling to access secure employment. The noble Lord, Lord Londesborough, reminded us about the serious problems affecting NEETs, which have cropped up several times in this debate already—and also the fact that, in other European countries, apprentices have a special legal status. In many ways, that is recognised in this amendment, because it talks about a contract. We can identify that we are talking about a very special situation, and I hope that the Minister sees that.

I will just add that, without legal clarity around probationary periods, particularly in the case of apprenticeships, many employers will be left uncertain—and uncertainty breeds hesitation. It becomes less likely that they will take on the risk of hiring an inexperienced young person, especially under a regime of day one unfair dismissal rights, with no allowance for the formative nature of apprenticeships. I shall be very interested to hear the Minister’s response on that matter, on how the Government seek to balance the protection of apprentices with the practical realities of probationary periods. I support the amendment.

[Lord Leong (Lab)]

My Lords, first, I take this opportunity to wish the noble Lord, Lord Hunt of Wirral, a very happy birthday. It is a fine way to spend a birthday this evening.

I thank all noble Lords who have contributed to this debate, notably the noble Lord, Lord Aberdare, for speaking on behalf of the noble Baroness, Lady Wolf of Dulwich. I thank the noble Baroness for her amendment and for all the work that she has done in primary and secondary education—especially her book, The XX Factor, which should be read widely by every person involved in education policies.

This group relates to apprenticeships; a later group delves deeper into unfair dismissal and probation. The Government recognise the significant value of vocational learning, and on-the-job training will continue to be fundamental to building the skills that the economy needs to grow. We recognise that employers value building knowledge and skills through apprenticeships, and this Government are committed to apprenticeships.

The Government are providing day one protections against unfair dismissal to all employees, including apprentices. Maintaining a qualifying period for apprentices will leave them open to being fired without any recourse to legal challenge on the grounds of unfair dismissal during their apprenticeship. This amendment would not create a probation period, as the noble Lord, Lord Londesborough, said; it would deny young people their day one rights. The Government’s preference is for statutory probation to be a period of nine months; in some instances, when an apprentice completes their apprenticeship, an employer may not have a permanent job for them. Most apprenticeship contracts are around two years in duration; in this case, the apprenticeship contact will expire and the normal tests for unfair dismissal will apply.

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[Lord Goddard of Stockport (LD)]

My Lords, I wish to speak in support of the amendments put forward by my noble friend Lord Fox, who is unfortunately away today, on NATO business I believe. Tomorrow, no doubt, he will pore over today’s Hansard. I hope that the noble Lord, Lord Hunt of Wirral, will be available then. I cannot unsee the picture of him in a four-poster bed with the trade union man climbing aboard, and will have to try to explain down the telephone to my noble friend Lord Fox, “It was quite humorous”. We will see what happens with that tomorrow.

My noble friend Lord Fox’s concerns include his Amendments 116 and 121, which offer much-needed clarity and balance to the protections around contract variations and unfair dismissals. The issue of predatory fire and rehire, as seen in the widely condemned P&O Ferries case highlighted by the noble Lord, Lord de Clifford, is an unacceptable, serious and pressing concern that employment legislation rightly needs to address now. No worker should be threatened with dismissal simply to impose worse terms and conditions on that person.

My noble friend Lord Fox’s proposals to exclude routine non-detrimental contract changes from triggering automatic unfair dismissal protections, as in Amendment 116, and to safeguard reasonable flexibility clauses expressly agreed in contracts, as in Amendment 121, would help ensure that protection against abuse is balanced with the practical realities that employees face. His further clarification in Amendments 117 and 122—that dismissals linked to redundancy with offers of suitable alternative employment and the lawful use of fixed-term contracts should not be unfairly restricted—rightly recognise that not all contract variations are harmful and that employees must be able to operate flexibly and fairly.

The amendments in the name of the noble Lord, Lord Sharpe, would facilitate contractual changes for financial organisations or workforce-related reasons. Although the intention is understandable, it is crucial that the Government provide clear guidance to ensure fair protection for workers, particularly those in smaller businesses. The approach to seasonal and variable-hour workers also requires careful consideration to safeguard their rights. We will return to that in a later group.

These amendments collectively illustrate the careful line that the Government must tread. Although it is crucial to clamp down on unfair and predatory fire-and-rehire tactics, as addressed by my noble friend Lord Fox’s amendments, we must equally recognise the legitimate need for flexibility and contract review in a changing economic landscape. I commend my noble friend’s amendments for their clarity and fairness in this regard, and encourage the Government to consider how best to incorporate these protections. At the same time, I urge the Committee to approach other proposed changes—as in Amendments 115 and 115A, which seek to clarify reasonable adjustments and productivity improvements—with a measured and practical mindset, to support both workers’ rights and sustainable business operations. I look forward to the Minister’s comments.

[Lord Leong (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate. This Government are absolutely clear that the use of unscrupulous fire-and-rehire practices must end. Employers should not be able to impose contract changes through threats of dismissal, except in the most limited and justified circumstances. We recognise that, at times, businesses may need to restructure to survive and protect jobs. The legislation accounts for such cases where there is genuinely no alternative and a business faces immediate financial difficulty. Fire and rehire may be used, but only following a proper good-faith process, grounded in open dialogue and mutual understanding.

Let me begin by addressing Amendments 113ZA, 113B and 118 from the noble Lords, Lord Sharpe and Lord Hunt, Amendment 115 from the noble Lord, Lord de Clifford, and Amendment 116, spoken to by the noble Lord, Lord Goddard, on behalf of the noble Lord, Lord Fox. These amendments aim to exclude certain types of contract variations from the clause, such as those relating to terms other than pay, benefits, hours or location, or to allow changes made for good or operational reasons. When a change in contract is essential and the employee will otherwise become redundant—for example, due to a move in location—or where the changes are necessary to reflect a change in the law, the employer will still be able to explain to the employee when proposing these changes. However, such changes should always be a result of meaningful consultation. Employers and employees must reach mutual agreement, allowing both sides to understand and assess the impact of the proposed changes. Open dialogue is key.

I turn to Amendment 114 from the noble Lord, Lord Sharpe, and Amendment 115. These propose broadening the permitted use of “fire and rehire” to include changes that are reasonably necessary to improve workforce productivity. The Bill is the first phase of delivering our plan to make work pay. We are supporting employers, workers and unions to get Britain moving forward. Alongside this and a new industrial strategy, the Bill will support the Government’s mission to increase productivity and create the right conditions for long-term, sustainable, inclusive and secure economic growth.

The Government do not support these amendments. We believe this practice should be allowed only where an employer faces no reasonable alternative and is under imminent financial threat. The noble Lord, Lord Hunt, mentioned what happens if a company is facing insolvency. I am sure most noble Lords know that insolvency does not come straight away. There is a whole process, and it is during this that consultation should happen between the employer and employee. When it comes to the last resort, when until and unless something happens the company is going to go belly-up, there may be a practice of “fire and rehire”, but before that, there should be consultation along the way.

These amendments would significantly widen the exemption and make it necessary for employers to use “fire and rehire”. That is not our intention. While businesses can still agree changes to boost productivity, such changes must come through proper negotiation, not coercion, as I just mentioned.

I now turn to Amendment 119, also from the noble Lord, Lord Sharpe, which proposes allowing “fire and rehire” if the changes are reasonable and supported by a majority of affected employees. This issue here is subjective. What is reasonable for one employee may be deeply unreasonable for another. Our goal is to protect individual rights. Clause 26 is designed to reduce the use of “fire and rehire” as a means to push through significant changes without individual consent.

I will address Amendments 117 and 122 from the noble Lord, Lord Fox, and Amendment 120 from the noble Lord, Lord Sharpe. They focus on whether dismissals for redundancy or the end of a fixed-term contract should be considered automatically unfair under Clause 26. The Government’s position is that, where a role is no longer viable under current terms, employers should follow due process, including meaningful consultation to seek agreement to vary contracts. If employees do not agree, and if the employer no longer requires the work to be done, redundancy may still be appropriate. In such cases, redundancy procedures must be followed, including consideration of alternative roles. Where the principal reason for a dismissal is redundancy, the dismissal will not be automatically unfair under Clause 26.

Now I turn to Amendment 121 from the noble Lord, Lord Fox, which concerns variation clauses in employment contracts. I wish to reassure the House that existing case law already governs the enforceability of such clauses. This clause applies only where there has been a dismissal, and so would not apply where a lawful variation clause has been lawfully exercised. Courts and tribunals will not uphold variation clauses if they are oppressive and exercised unreasonably. This amendment is therefore unnecessary as a legal protection already exists.

I now turn to Amendments 120A and 120B, which relate to the factors a tribunal should consider when assessing the fairness of a dismissal under the clause exemption. It is appropriate that tribunals should consider where the employer offered the employee something in exchange for agreed-to changes. Fair contract variation should be built on dialogue, not pressure. It is right that the Secretary of State should have the power to specify additional relevant factors for tribunals to consider in future. These regulations would be subject to affirmative resolution procedure, ensuring full parliamentary scrutiny.

Finally, Amendment 113 from the noble Lord, Lucas, seeks to limit the clause to only substantial contract changes. We reject that. Even minor-seeming changes can have major consequences for individual employees. Individuals must be allowed to consider proposed changes without facing dismissal threats. That principle underpins the clause.

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[Lord Hunt of Wirral (Con)]

My Lords, I have a feeling that although the Minister was doing his best, he was reading from a script that had been drafted before this debate took place. I listened to my noble friend Lord Lucas and the noble Lords, Lord de Clifford and Lord Goddard of Stockport. They were just giving ordinary examples that need clarity. We did not get from the Minister a clear exposition of how, in those individual cases instanced by colleagues in the debate, they could prevent the Minister’s overall objective. We all agree with him that we have to try to prevent the sort of situation that arose, which we all condemned, ever happening again. But do not let it be so wide that it will stop just minor organisational changes.

[Lord Leong (Lab)]

I thank the noble Lord for giving way. The principle here is that we have to consult with employees before the final resort. Fire and rehire should be the final resort and remedy. Before we even reach that, the whole process of consultation and sitting down and finding a solution should be an underpinning principle.

[Lord Hunt of Wirral (Con)]

I think we are all in agreement, except that the Bill goes too far. For a minor change of address when a company moves offices to be caught by all this in the way that we have exemplified—I think we need greater clarity. But, of course, the hour is late and I do not want to prolong the debate. In the meantime, I beg leave to withdraw the amendment.

Data (Use and Access) Bill [HL]

Lord Leong Excerpts

Consideration of Commons amendments and / or reasons
Monday 19th May 2025 Lords Chamber

[Lord Dobbs (Con)]

My Lords, I thank the noble Baroness, Lady Kidron, for her indefatigable efforts. She has argued persuasively, patiently and passionately—and there is nothing wrong with a bit of passion in this Chamber, is there chuck?

It is not just the noble Baroness. We heard about Elton John over the weekend. He is a national treasure, an icon, a working-class boy made good, a role model who knows the creative industries from the very bottom and a man who is worth listening to, particularly, I would have thought, as he was a Labour supporter at the last election. Yet in his outrage at their complacency, Elton John called this Government “total losers”. Those are harsh words. He could have gone further, because the real losers are going to be the nearly 2.5 million of us—I must declare my interest—who work in the creative industries. All of us could be losers. Yet all this amendment really asks for is a bit of transparency so that we in the creative industries know who will be using our work, which we have slogged away at, struggled with and often suffered to create.

The elected Government must, of course, get what they want, but they do not know what they want. Only the other day, the same Government were proclaiming their commitment to soft power and declaring that the creative industries are a vital part of it. Ministers said that our world-beating creative industries are one of the country’s greatest assets. Did they mean it, or were they just empty words? Why are Ministers burying themselves in their departmental silos? All we are asking is for the Government to support their own policies and join them together—give it some harmony, if you like, and follow Sir Elton down that yellow brick road which has created so much success not simply for him but for the entire country.

It is because of that great success, because our creative industries are world-beaters, that so many others would love to have part of it. Of course we must protect our creative rights and intellectual property. Why are the Government leaving the front door open and the lights on, with a guard dog chained up at the back? Those who want it will not even need to hack our work; they can simply walk in and take it.

We should listen very closely to the wise words of the noble Baroness, Lady Kidron. The world is changing at speed almost beyond our imagination. Please allow us—the writers, the songsters, the artists, the composers—a little protection, so that we can carry on creating and enabling Britain not just to punch above our weight but to sing above the song. I would much prefer to see the Minister not as a total loser—that is entirely inappropriate—but as a great listener. I wait with bated breath and my pen poised.

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

As my noble friend the Chief Whip said at the start of this debate, we are now into the second round of ping-pong on this Bill. These issues have been debated extensively across Committee, Report and ping-pong last week. I urge all noble Lords to keep their contributions, and this debate, brief and focused.

[Lord Watson of Wyre Forest (Lab)]

My Lords, it’s a little bit funny, this feeling inside, as I rise to support the amendment from the noble Baroness, Lady Kidron—which my Front Bench so clearly opposes—but I’m still standing, because I do not yet believe that Ministers have heard the clarion cry from our country’s creators that they need more from this Bill.

In supporting this amendment, I draw the attention of the House to my declaration in the register as the proud chair of UK Music and as an author; although I say to my good friend the noble Lord, Lord Cashman, that, sadly, I have not had the benefit of a rightsholder’s cheque to rub across my ample bosom for several years. I support this amendment because it brings a measure of balance. I understand the Government’s reticence in getting this right, but I believe it is entirely possible to offer a concession to the creative industries without jeopardising the Prime Minister’s commitment to the AI revolution.

Elton John was wrong yesterday to personalise this debate but, as one of this country’s greatest ever songwriters, he is entitled to ask: what has he got to do to make you love him? More importantly, what has he got to do to make you hear him? The Minister might not like this amendment but, if not this one, then what? No credible alternative has been offered so, reluctantly but firmly, I shall be voting for the only protection on offer today. When you fail to listen, you leave people with no choice but to sing another tune.

Employment Rights Bill

Lord Leong Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

[Lord Lucas (Con)]

My Lords, as a proprietor of a small business, I can say that anything with the words “all reasonable” in it is going to meet with some very careful consideration. Of course, I am going to take advice and spend a good deal of time internally looking at the consequences. For me, and I would expect for most businesses like mine, there are going to be costs. As the noble Baroness, Lady Fox, said, employment lawyers do not come cheap, and I expect that this is going to cost a great deal more than the Government say it is.

Of course, I can also see the benefits. If I read Clauses 19 and 20 together, and apply them to the way schools are run, I think we are going to get discipline at Katharine Birbalsingh levels, because schools will have an active duty to make sure that their staff are not harassed by pupils or parents. They will be required to come up to the best standards, so I can see the Government’s ambitions in this. Amendment 97, which proposes a really accurate look at the benefits and costs of this part of the Bill, would be therefore helpful so that we all understand how to make the best of what are undoubtedly, at their heart, some very good intentions.

In case the noble Lord, Lord Fox, is reaching for his matchbox again tonight to light his straw men, here are a couple of examples from my experience. One is from visiting someone my age in hospital who was recovering from a serious operation. A couple of other people on the ward, under the influence of the shock of the operation and the drugs they were on, had reverted 50 years; the way they were treating the black nurses was quite extraordinarily horrible. The nurses were taking it on the chin and carrying on giving the best possible care. The other example is a disabled woman in a wheelchair who asked for help getting on a train at a station but was refused for reasons she thought condescending. She got a bit cross, and the station manager said, “Right, we’re not putting you on any train today”.

Those situations would both be impacted by Clause 20 in particular. How will this Bill work in practice? Looking at those two circumstances, will it be possible for the NHS, or indeed other caring organisations, to offer care where patients have become, for reasons that are not to do with their conscious selves, completely unreasonable? Is it reasonable to leave a disabled woman marooned in London just because she had a disagreement with a member of staff who got upset about it? How is this going to work? A really good understanding of that—rather than us all having to worry about what the impact of this section might be —would be a really helpful thing to find in this Bill.

[Lord Leong (Lab)]

My Lords, this has been a very thought-provoking debate, and I thank all noble Lords who have contributed. I thank the noble Lord, Lord Sharpe of Epsom, for tabling Amendment 97. The noble Lord is seeking to add a new clause that would require the Secretary of State to assess the impact on free speech and on employers of Clauses 19 to 22 when the Bill becomes an Act. We have already produced and published an extensive set of impact assessments. Indeed, we have produced and published no fewer than four impact assessments covering provisions in the scope of the noble Lord’s amendment.

[Lord Hunt of Wirral (Con)]

In order to get his speech off to a really good start, can the Minister include his defence of the red rating given to those impact assessments by the Regulatory Policy Committee, a completely independent assessment?

[Lord Leong (Lab)]

I thank the noble Lord for reminding me of this; we covered it last week. The RPC did not question the policy of the Bill. It just questioned the evidence—and I will go further on this Bill.

These assessments are based on the best available evidence of the potential impact on businesses, workers and the wider economy. We plan to further define this analysis in the future, working with a range of stakeholders including businesses, trade unions, academics, think tanks and the Regulatory Policy Committee to do so.

The Government are steadfast in their commitment to tackle all forms of harassment in the workplace. We know that harassment at work can have a huge impact on affected individuals, as well as broader economic impacts. The burden of holding perpetrators to account and of driving change is too great to be shouldered by employees alone. These measures send a clear signal to all employers that they must take steps to protect their employees from harassment, including from third parties, to encourage a cultural change.

We know that the vast majority of employers agree that harassment is unacceptable and are working to ensure that their employees are treated with respect. We will work in partnership with them towards this shared goal and will support them with these changes. We will publish an enactment impact assessment once the Bill receives Royal Assent, in line with the Better Regulation Framework. This will account for amendments made to primary legislation during the Bill’s passage through Parliament that would significantly change the impact of the policy on business. This impact assessment will be published alongside the enacted legislation. Additionally, we will publish further analysis, alongside carrying out further consultation with stake-holders, ahead of any secondary legislation, to meet our Better Regulation requirements.

According to our best estimates, across all our harassment measures the monetary cost to businesses will not be significant. Other than the initial one-off familiarisation cost, repeatable costs to businesses are very low. All three measures will also bring benefits to businesses in avoiding the harassment of staff.

[Lord Jackson of Peterborough (Con)]

I hear what the Minister says, but even the economic analysis says there will be a 15% increase in individual enforcement cases in employment tribunals arising from litigation because of the Bill. The analysis says:

“The exact impact on the enforcement system is difficult to predict because the number of cases that enter the system each year fluctuates”,


and that

“final policy decisions taken at secondary legislation will alter the number of workers in scope of protections and likelihood of a worker making a claim. These decisions are still subject to consultation and further policy development and therefore cannot be assessed with confidence”.

Later it says that the

“initial analysis on the impact of the Bill on enforcement is subject to change as policy development continues”.

The Minister is asking us to wave this clause through on the basis of information that has not been presented to this House.

[Lord Leong (Lab)]

No, I was not saying that. What I said is that we are carrying out consultation and we will conduct further impact assessments. We are not saying that we are finished with it and that this is it. We have already assessed the impact of provisions about third-party harassment on SMEs in our impact assessment on third-party harassment. In all our impact assessments we assess the impact on SMEs, and the Bill is not expected to have a disproportionate impact on SMEs.

[Lord Lucas (Con)]

My Lords, “all reasonable steps” is serious stuff. You not only have to employ someone who has a breadth of experience that goes beyond yours as an SME to advise you as to what “all reasonable steps” are; you also have to work out, in conversations with your staff, how those are to be expressed in practice. I reckon it would cost me £1,000 in year one. In year two the cost does not go down much, because things change: the law clarifies and develops, and you have to go back to the expert. Internal conversations may be clear, so it may be £500. Multiply that across SMEs—we are not a huge SME—and you get a much bigger figure than the Government are talking about. I would really like to know where they are getting their figures from.

[Lord Leong (Lab)]

This is precisely why we need to have consultation and to talk to the stakeholders out there. The more information we have, the better it is for us to assess the impact. Let me carry on, and I will come back to various noble Lords’ questions.

The proposed amendments would not add value, given the expansive impact assessments the Government have already committed. Some 27 impact assessments have already been done.

The noble Lord, Lord Hunt of Wirral, asked for evidence. The ONS figures have been published, so I do not need to repeat them. They state that some 21.8% of the people aged 16 years and over who say they have experienced sexual harassment in person in the last 12 months experienced it at their place of work. On third-party evidence, the ONS states that some 9.2% of the people aged 16 years and over who say they have experienced non-sexual harassment in the last 12 months had been harassed by a client or a member of the public contracted through work.

Before I conclude, let me share a personal story which I still find it very difficult to talk about and share. Like the noble Lord, Lord Fox, I also worked in a pub in my student days. That time is a period that I would rather not remember, but because of the nature of the debate today, I am sharing this with noble Lords for the first time—including some of my colleagues. This is a very personal story. Every day that I worked at the pub, I was harassed. I was called “Kung Fu Fighter” and “Ching”; I was called everything under the sky. Every time they wanted to ask for a pint, all names were shouted at me. I complained to the manager then and he said, “Oh, it’s the British culture. It’s a bit of banter”. It was not a bit of banter, because until today I still find it very difficult to talk about. This is perhaps my contribution to whatever impact assessment the noble Lords want. I left the pub after, probably, two weeks because I just could not take it anymore. When I made some money, I wanted to buy the pub so that I could sack the manager, but, unfortunately, the pub was closed.

This is a very personal story, and I just want noble Lords to reflect. I am just one of millions of people affected in this way. I therefore invite the noble Lord to withdraw his amendment.

[Lord Hunt of Wirral (Con)]

We are all very grateful to the Minister for sharing that personal experience. I believe he can be comforted by knowing that there is a shared desire right across this House to ensure that all workplaces are safe, respectful and free from harassment. I hope that he would also expect, in the light of his personal experience—and I think several of us could probably share our personal experiences—that we must, however, act as a Parliament should act, which is that well- intentioned legislation has to be workable, proportionate and underpinned by clear evidence.

The noble Lord, Lord Hendy, made the point about the benefits, but any impact assessment will not be restricted to looking at the costs but will also look at the benefits. Any proper impact assessment should give the full picture, so that when the legislation is presented to Parliament, we can adjudicate on it. In many ways, the consultation he instanced is coming the wrong way round. The consultation should accompany the intention to legislate. Then, once the consultation is complete, we are subject to parliamentary scrutiny. Consultation is no excuse for lacking accountability to Parliament. That is, I think, where the issue divides us.

[Lord Leong (Lab)]

I take on board every contribution made by every noble Lord. This is a very important aspect, and we need to get it right. Rather than me reading a couple of sentences provided by my officials in the Box, I make an offer to all noble Lords that I will organise a meeting so that we can sit down and go through this in more detail.

[Lord Hunt of Wirral]

There is no need for me to say any more. Thank you very much. I accept that offer, and I beg leave to withdraw my amendment.

Employment Rights Bill

Lord Leong Excerpts

Committee stage
Tuesday 29th April 2025 Lords Chamber

[Lord Hunt of Wirral (Con)]

My Lords, I am very grateful to the noble Baroness, Lady Kramer, for setting out the position so clearly, but I am particularly grateful to my noble friend Lady Noakes because, as a result of her moving the key Amendment 5, we have had a remarkably positive debate about what I believe is the lifeblood of the UK economy, namely the small and medium-sized business sector. The noble Lord, Lord Londesborough, of course, is a great authority on all this, and it was good to hear from the noble Lord, Lord de Clifford, as well.

When we reflect for a moment on the speeches that have been made in this debate—apart from that of the noble Baroness, Lady Kramer—we have not had any contributions from the Government Benches. But, as my noble friend Lord Leigh of Hurley pointed out, the most important contribution will be made by someone who really does understand. The noble Lord, Lord Leong, knows all about small businesses, and I am thrilled and delighted that he is summing up the debate because he understands what so many of my colleagues have tried to point out. The noble Baroness, Lady Neville-Rolfe, said that bureaucracy can get in the way of success. Look at the amount of rules and regulations and bureaucracy.

I agreed with all my noble friends, including my noble friend Lord Ashcombe when he pleaded for a sensible and measured response. We all want to see bereavement leave—all good employers allow for bereavement leave. We want to see rights established very clearly, but my noble friend Lady Verma pointed out that if we impose them on the small and medium-sized sector in the way that my noble friend Lady Noakes outlined, three, four or five employees will suddenly have to deal with all this legislation.

Let us remind ourselves of the importance of small businesses. As several of my colleagues pointed out, at the start of last year there were 5.45 million small businesses with up to 49 employees, making up a staggering 99.2% of the total business population in the UK. We are talking about a massive sector, and therefore we have to worry and concern ourselves about the effect of the Bill. As the Federation of Small Businesses put it, in its current form the Bill risks becoming nothing short of a disaster for small and micro-businesses.

The noble Baroness from the Liberal Democrat Benches spoke about a two-tier workforce system, which those Benches object to. But as my noble friend Lady Noakes pointed out, we do in fact have tiering alive and well throughout the UK economy. It is not trying to impose one size fits all; it is recognising that over 99% of businesses in this country are small and cannot possibly cope with the burden of this Bill.

It just so happens that I already have a quotation from the noble Lord, Lord Leong, which I readily move to. We have heard from the Government on multiple occasions that they are committed to supporting SMEs and ensuring that they are not burdened with excessive costs or red tape. The noble Lord, Lord Leong, made a very important point during the passage of the Product Regulation and Metrology Bill:

“we do not want to burden SMEs with additional regulatory or financial cost”.—[Official Report, 25/11/24; col. GC 138.]

What wise words: we would love to hear those words from him again tonight. He will realise that the reality of this Bill is starkly different. The only thing this Bill seems to do for SMEs is to burden them with additional regulatory and financial costs. It is incredibly difficult to reconcile the Government’s stated intentions with the actual impact this legislation will have on small and micro-businesses across the country.

I know that my noble friend Lord Sharpe of Epsom and I have Amendment 282 in this group, but I do not want to go into it. I was taking the old Companies Act definition, and I do not need to go into all the findings of the Bolton committee and all those who have sought to define this, because I think my noble friends have done a great deal to define small and medium-sized enterprises.

We just need to know what the Government intend to do to alleviate the burden on small and micro-businesses. The impact assessment has highlighted the significant challenges that these businesses will face in implementing these reforms, and at the moment there is no adequate plan to support them.

I would like to ask the Minister these questions. First, will he please outline what the three main expected benefits of this Bill will be for small and micro-businesses? Secondly, how will the Government support small businesses in complying with the provisions of this legislation? What kind of guidance, training and resources will be made available to ensure that these businesses can navigate the new regulations without inadvertently falling foul of the law? Finally, can the Minister provide an assessment of the risk of unintentional non-compliance by small businesses? What steps are the Government taking to mitigate this risk and ensure that these businesses are not unduly penalised as a result of a lack of guidance in the legislation?

The Government have not consulted the small and medium-sized sector. If they have, can we please have a great deal more detail on what their conclusions were? If they have not consulted, will they please do so now?

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

My Lords, I thank all noble Lords who contributed to this group of amendments with such passion. The noble Baroness, Lady Noakes, together with the noble Lords, Lord Sharpe and Lord Hunt, tabled several amendments—Amendments 5, 124 and 282—that seek to remove micro-businesses and small and medium-sized businesses from the scope of large sections of the Bill.

--- Later in debate ---

[Lord Leigh of Hurley (Con)]

With respect, the statement that was issued on April Fools’ Day seems to be in support of the minimum wage, not of the specific clauses in the Bill.

[Lord Leong (Lab)]

I thank the noble Lord for that, but IKEA is pretty supportive of the overall intention of the Bill and of the national minimum wage, which is obviously outside the scope of the Bill, such as what we are doing on zero-hours contracts, other short-term contracts and all that. I will write to the noble Lord with further details on the various clauses that it supports.

Various noble Lords asked about the impact assessment. The benefits of the Bill that were published by the TUC show that even modest gains from reforms to workers’ rights will benefit the UK economy by some £13 billion. Opposing this, the impact assessment says that the costs to business would be some £5 billion or 0.4% of employment costs. The benefit is huge, and economists have done research on this.

I cannot agree more with the noble Lord, Lord Londesborough, who says that start-ups and scale-ups definitely generate employment. It is absolutely right that we have to support them and I strongly believe that the Bill does support them.

Various noble Lords mentioned day-one rights and difficulty in recruiting employees. Remember that, when you run a small business, yes, it is very competitive to employ your first employee: sometimes you have to compete with the big companies in matching salaries or even benefits. I believe passionately that the Bill puts SMEs on a level playing field with large companies, where they can offer the basic benefits in the Bill.

Sometimes we asked: why are we excluding SMEs because it is so difficult for employers to recruit, and why should employees in SMEs not get day-one rights? My answer is: why not? Why should they not get day-one rights? As I said, they are the people who work for the owners, for the owners to make the profit. Without them, the owners will not have a business, so it is very important that they are supported and I believe strongly that good businesses provide fantastic support to their employees.

[Lord Ashcombe (Con)]

My Lords, I am not sure that it is the difficulty in recruiting that is the real problem for small and micro businesses; I think it is the fear of recruiting. That is a really different point.

[Lord Leong (Lab)]

I thank the noble Lord for that. I might turn that around and say that, if I am looking for a job, I have a choice of big or small companies. I am taking a chance and a risk working for a very small company. I am not sure whether that company will last. That risk works two ways. I strongly believe that most people work for companies not because of what the company does but because they look at the owner or the founders and whether they want to work with such people. At the end of the day, the employees will also be taking a chance on the employer.

[Baroness Verma (Con)]

My Lords, there is a huge difference between a large business—and its culture and the ability to respond to all the new burdens that will be placed on it—and a small business. The Minister himself said that a happy business and happy employees add to a good bottom line. The problem is that, if an employer is so burdened by so many things to comply with because it is a small employer, that happiness is soon going to disappear. All I think that all noble Lords around the House are asking is that we ease the burdens for small and micro-businesses by removing not the rights but just the burdens.

[Lord Leong (Lab)]

I thank the noble Baroness for that. There are other additional responsibilities, not only in terms of HR. A company that sets up needs to have IT support and payroll support. How many SMEs have their own IT department or payroll department, let alone an HR department? There will be big businesses that will be providing services to support SMEs. The whole argument is about responsibility: basically, when you set up a business, you have all these responsibilities, and this is part of those responsibilities.

[Baroness Verma (Con)]

My Lords, I do not want to labour the point but, if the Minister were to speak to the small businesses that people like us are speaking to, I think they would really argue that these are huge implications for them.

[Lord Leong (Lab)]

I thank the noble Baroness. I will not hold the House for too long, because I think the dinner break is coming up, but I will obviously meet up with her to talk further on this.

To conclude, the Government believe that having an entitlement to fair, flexible and secure working should not be reserved for those people who work for large companies. It is fundamental that our “make work pay” reforms, including those in this Bill, apply across all employers. Any exceptions to this provision based on the size of the business would create a two-tier labour market, with some workers facing fewer rights, entitlements and protections. This would reduce the talent pool from which SMEs could attract employees, as I mentioned earlier. This in turn would lead to an uneven playing field between employers of different sizes and reduced incentives for small businesses to grow. I therefore ask the noble Lord, Lord Sharpe, to withdraw Amendment 282 and the noble Baroness, Lady Noakes, to withdraw Amendments 5 and 124.

Employment Rights Bill

Lord Leong Excerpts

Committee stage
Tuesday 29th April 2025 Lords Chamber

Moved by

[Lord Leong]

14: Clause 1, page 4, line 2, at end insert—
“(8A) Subsection (8B) applies where—(a) a worker’s contract or arrangement requires an employer to make work available to a worker for a number of hours, and(b) some or all of those hours may be made available either on days falling within a reference period or on days falling within another period (all of the days on which the hours may be so made available together forming “the longer period”).In subsection (8B), “the unassigned hours” are the hours that may be made available at any time during the longer period as described in paragraph (b).(8B) Where this subsection applies—(a) subsection (3)(a)(ii) is to apply as if the contract or arrangement required the employer to make work available to the worker during the reference period for the apportioned number of the unassigned hours (in addition to any other hours that the employer is required to make available to the worker during the reference period);(b) “the apportioned number” of the unassigned hours is—Image-1where—H is the number of the unassigned hoursD1 is the number of days in the reference period that fall within the longer periodD2 is the number of days in the longer period.(8C) Where there is more than one longer period in relation to the same reference period, subsection (8B) is to be applied separately in relation to each longer period.”Member's explanatory statement
This amendment makes provision, for the purposes of proposed section 27BA(3)(a)(ii) of the Employment Rights Act 1996, about the calculation of the number of hours for which an employer is required to make work available to a worker during a reference period in cases where hours might be made available in that period or another period.

--- Later in debate ---

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

My Lords, I beg to move government Amendment 14 and shall speak also to government Amendments 23, 25, 26, 30, 34, 35, 39, 40, 41 and 45 to 61. I reassure the Committee that these are technical amendments brought about as a result of very welcome scrutiny of the Bill.

The amendments incorporate technical and clarificatory adjustments, close loopholes to safeguard policy functionality, and resolve uncertainties to ensure the measures are comprehensive and will accurately deliver the policy intent set out in the plan to make work pay, delivery of which was a clear manifesto commitment of this Government. They do not introduce new policy; they simply ensure the Bill works to achieve its intended aims effectively. Making technical amendments to the Bill in this way is an entirely appropriate and ordinary part of making good legislation.

On Amendment 14, as the Bill is drafted, workers on annualised contracts—or other contracts where the hours are guaranteed over a period longer than the reference period—that have a total number of guaranteed hours of work but little detail as to their allocation may fall out of the scope of the right to guaranteed hours. This is because the worker would be on neither a zero-hours contract nor a contract guaranteeing a certain number of hours over the reference period. It is the case even if they would otherwise be eligible. Workers may therefore fall out of the scope even if they are guaranteed only a very small number of hours over a year.

On the other hand, workers on annualised hours contracts who have a sense of when their hours will be worked may fall into scope of the right to guaranteed hours if they have a certain number of hours guaranteed during the reference period. This is not our policy intention—workers on annualised contracts may experience one-sided flexibility in the same way as those on weekly or monthly contracts. As the Bill is drafted, there may also be a perverse incentive for employers to place workers on to annualised hours contracts guaranteeing a very small number of hours with no indication as to when they should be worked to avoid being in scope of the right to guaranteed hours.

Amendment 14 will ensure that the policy works as intended and expected and will act as an anti-avoidance measure. It makes provision to determine what the minimum guaranteed hours are in the relevant reference period by providing a calculation method to find the apportioned number of any unassigned hours under the contract for that reference period.

Amendments 49 to 57 add grounds on which a dismissal would be automatically unfair. A dismissal would be automatically unfair where an employee was dismissed for bringing a complaint to an employment tribunal that they were wrongly issued a notice by their employer stating that their guaranteed hours offer had been withdrawn or for alleging the existence of any circumstance which would constitute a ground for bringing such proceedings. Adding these grounds aligns with the approach taken where a worker is unfairly dismissed for taking a claim to an employment tribunal on other grounds relating to the right to guaranteed hours. All employees deserve protection from unfair dismissal. These amendments will ensure that employees who make a claim in an employment tribunal on any of the grounds related to the right to guaranteed hours will be protected from being dismissed as a result of making such a claim. Consequential amendments have been tabled to amend the right not to suffer a detriment for workers and agency workers to ensure consistency when referring to the proceedings that can be brought or referred to and that could lead to that detriment.

Amendments 25, 26, 34 and 35 relate to the movement of shifts for the purposes of payment for workers for shift movement at short notice. These amendments make technical changes to the definition of the “movement” of a shift. This is to provide for situations where a shift is split in two or more parts, or where a part of a shift is moved with the result that the shift ends later than it otherwise would have but the start time remains the same. For example, a worker could have a 9 am to 5 pm shift changed at short notice to 9 am to 12 pm and 4 pm to 9 pm. In this case, it is right that a payment for a short-notice change is granted given that the worker may have already incurred costs for plans associated with the shift, such as childcare or other care arrangements.

Amendments 30 and 40 make technical changes relating to payments for shifts that have been cancelled, moved or curtailed at short notice where an exception applies. Where an exception applies—meaning that the employer is not required to make a payment for that changed or cancelled shift—the employer must provide the worker with a notice so they are aware that they will not receive a short-notice payment and why. The notice must be given to the worker within a certain amount of time, which will be specified in regulations. This period may be shorter than the deadline for making payment, which will also be specified in regulations. Under the current drafting, even if they make the payment despite an exception applying, the employer still has to provide an exception notice if they make the payment after the deadline for giving a notice. The amendments change this so that employers do not need to provide a notice if they pay the worker within the deadline for making the payment. The same applies in respect of work-finding agencies and agency workers.

Amendment 23 aligns the wording used in Clauses 2 and 3. To be eligible for the right to short-notice payment, workers must be on a contract of a specified description, if they are not on a zero-hours contract or arrangement. This is referred to in Clause 2 as a contract

“that requires the employer to make some work available to the worker”.

We are adding the same description into Clause 3 to ensure that this is included in the provision.

Amendment 39 is a minor and technical amendment that corrects a cross-reference to align paragraph 23(5) of new Schedule A1 to the Employment Rights Act 1996 with new Section 27BR(3) of the same Act, both inserted by this Bill. This concerns the duty to give notice where an exception applies that means that no payment is due for a shift that has been moved, cancelled or curtailed at short notice. The amendment ensures that, for both directly engaged workers and agency workers, only the requirement to give an explanation in the notice of exception does not require the disclosure of information where that would contravene data protection legislation or breach a duty of confidentiality, or where the information is commercially sensitive.

Amendment 45 signposts at Clause 6 the definition of “work-finding agency” in Clause 4. This minor and technical amendment adds the definition of “work-finding agency” to the interpretation section in new Section 27BZ2, with other definitions used for that part. It does this by referring to its meaning in new Section 27BV of Part 2A of the Employment Rights Act 1996.

Amendments 46, 58 and 61 amend Schedule 6 to the Insolvency Act 1986, Schedule 3 to the Bankruptcy (Scotland) Act 2016 and Section 184 of the Employment Rights Act 1996 so that employees can receive short notice payments in the same circumstances as they receive other wages on the insolvency of their employer. When an employer goes insolvent, outstanding wages due to employees are treated as preferential debts—or preferred debts in Scotland. Amendments 58 and 61 ensure that outstanding short notice payments are also treated as preferential or preferred debts.

Amendment 46 enables employees to obtain payment of unpaid short notice payments from the Secretary of State in the same circumstances as they receive other wages under the scheme created by Part 12 of the Employment Rights Act 1996.

Amendment 59 amends Section 202 of the Employment Rights Act 1996 to ensure that information does not have to be provided and will not be disclosed to a tribunal or court under the zero-hours provisions where a Minister is of the opinion that such disclosure would be contrary to the interests of national security.

Amendment 60 amends Section 206 of the Employment Rights Act 1996 to ensure that, in the event of a worker’s death or the employer’s death—or the death of another respondent in the case of agency workers—tribunal proceedings under the zero-hours provisions can still be instituted, continued or defended as appropriate by a personal representative of the deceased.

Amendments 41 and 47 amend Section 12A of the Employment Tribunals Act 1996 and the provisions on short notice payments for agency workers in order to enable employment tribunals to impose financial penalties on all types of respondents in claims brought under the zero-hours provisions where there are aggravating circumstances.

Amendment 48 amends Section 16 of the Employment Tribunals Act 1996 to include payments for cancelled, moved or curtailed shifts in scope. This ensures that regulations can be made to enable benefits to be recouped where a worker has not received such a payment and so has had to claim benefits, and the tribunal has then ordered the employer or work-finding agency to make the payment. The amendment also ensures that regulations can be made so that benefits can be recovered from all types of respondents in claims brought under the zero-hours provisions—for example, in respect of the payments that are compensation for loss of wages.

These amendments seek to prevent workers receiving double award where their rights have been breached and ensure that employers and other respondents do not benefit from breaching these rights. I therefore beg to move these amendments.

[Baroness Coffey (Con)]

My Lords, I rise to speak to this group of government amendments. I am surprised that the Minister made the assertion that they are all technical. Amendment 53, for example, extends the types of dismissal that will be regarded as “automatically unfair”. That is not a technical amendment; it is an extension of what is already considered potentially controversial in being added to the Bill in this way.

There are other amendments in this group that really concern me in their drafting. Multiple amendments leave out several lines of the previous Bill presented to this House and the other House and then leave the employment tribunal and the employer to get into the detail. For example, Amendment 52 states:

“It is immaterial … whether or not the proceedings were, or would have been, well-founded provided that the agency worker acted in good faith in bringing the proceedings or alleging the existence of the circumstance”.


I ask the Minister, what has changed? Why do we now have an employment tribunal group which has to decide whether the actor worked in good faith? They will not necessarily need to know what the Government proposed before, but it would be very helpful to understand why significant parts of the Bill on the operation of the employment tribunal are being changed at this stage.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the Minister for his detailed introduction to the amendments in this group. As he was speaking, I thought that he had inadvertently highlighted the mind-boggling complexity of what employers are up against when dealing with this Bill. I did hear all the words but, to paraphrase a famous comedian, I was not entirely sure that they were necessarily in the right order.

As my noble friends Lady Coffey and Lord Murray, and the noble Baroness, Lady Kramer, have pointed out, the Government tabled these 27 amendments only a few days ago. Perhaps they are simply technical amendments, but I am afraid I am inclined to agree with the other speakers that they do not appear to be so. I will just pick a few items at random from the Minister’s speech. If amendments involve national security, insolvency and the death of a claimant at an employment tribunal, these are matters of substance; they are not technical at all.

This is not the way to do business in this House. The last-minute approach is symptomatic of a much deeper issue, which is the lack of care and due diligence when it comes to this Bill. It is rushed, it is poorly thought-through, it has been inadequately consulted on, and it is one that these Benches will scrutinise to the fullest possible extent.

We have to ask why the Government have still not tabled any amendments to address the concerns of businesses regarding the changes to zero-hours contracts in this Bill. These are not niche or minor concerns; they go to the heart of how businesses—especially, as we have been discussing all evening, small and seasonal employers—operate.

We have heard already some of the germs of the future scrutiny that these amendments can expect to receive in depth. We will not oppose them today, but we of course reserve the right to revisit them at a later stage, when we have had time to digest them and read the Minister’s comments in much more detail.

On a personal note, I read Amendment 14 with mounting horror. It induced a minor heart flutter because it reawakened memories of a particularly unsuccessful algebra exam I took when I was about 16. I would be very grateful if we could have a minor health warning on any future amendments of that type.

[Lord Leong (Lab)]

I thank all the noble Lords for their contributions. Some noble Lords raised concerns about the number of amendments tabled by the Government, and I would like to reassure the Committee that these really are technical amendments, brought about as a result of welcome scrutiny of the Bill. They are entirely appropriate and an ordinary part of making good legislation. I remind noble Lords that we had tons of government amendments when we debated the Procurement Bill recently, so this is not unusual.

I will answer some specific points raised by noble Lords. The noble Baroness, Lady Coffey, asked about Amendment 53. This is one of a number of technical amendments designed to ensure that the Bill operates as it was intended to operate. As an example of how technical they are, Amendment 53 seeks to amend new Section 104BA because we realised that it was not clear that Section 104 of the Employment Rights Act 1996 already ensured that dismissal in such cases was automatically unfair.

The noble Lord, Lord Murray, mentioned scrutiny. There will be technical regulations tabled at a later stage, or during the course of this legislation, and the House will have every opportunity to scrutinise these through the affirmative procedure. There will be time for noble Lords to scrutinise delegated powers and this Bill.

[Lord Murray of Blidworth (Con)]

The Minister appears to be saying that the House’s deficit in scrutiny can be made up by the fact that we can scrutinise secondary legislation. As the Minister will be well aware, the last time this House negatived a statutory instrument was, I think, in the 1970s. It is an all or nothing: either we agree to a statutory instrument or we do not; we cannot amend a statutory instrument. The Minister will surely agree that, realistically, this is not an avenue for scrutiny.

[Lord Leong (Lab)]

I take the noble Lord’s point, but I am sure he will appreciate that, when he was a Minister, a number of statutory instruments were placed before the House and we had every chance to scrutinise them. There is a question over whether noble Lords want to table whatever options are open to them, but the whole objective is that the House will be able to scrutinise regulations as well.

I refer to the point about algebra from the noble Lord, Lord Sharpe. I had to read three times the formula in Amendment 14 to understand what it actually means. I will try to explain in plain English what we are trying to achieve with H times D1 over D2.

To qualify for guaranteed hours, a worker’s existing guaranteed hours need to be lower than the threshold and the worker needs to work more than the guaranteed hours in the reference period. That condition does not work for someone whose guaranteed hours may or may not fall entirely in the reference period, such as someone on an annualised-hours contract with no clarity on when those hours fall.

--- Later in debate ---

[Baroness Kramer (LD)]

Before the Minister sits down, could he answer my question on whether or not there will be a code of practice? I can see many businesses struggling their way through all this stuff. I think his attempt to clarify the complex algorithm illustrates the need for such a code very powerfully.

[Lord Leong (Lab)]

I thank the noble Baroness for her question, which I have written down. In response to an earlier grouping, my noble friend the Minister said that the Government would publish detailed guidance on the government website, which I hope will give some clarity on that.

Amendment 14 agreed.

Data (Use and Access) Bill [HL]

Lord Leong Excerpts

Committee stage
Tuesday 10th December 2024 Grand Committee

[Lord Leong (Lab)]

My Lords, I thank noble Lords for another thought-provoking debate on consent in scientific research. First, let me set out my staunch agreement with all noble Lords that a data subject’s consent should be respected.

Regarding Amendment 70, Clause 68 reproduces the text from the current UK GDPR recitals, enabling scientists to obtain “broad consent” for an area of research from the outset and to focus on potentially life-saving research. This has the same important limitations, including that it cannot be used if the researcher already knows its specific purpose and that consent can be revoked at any point.

I turn to Amendments 71 and 72, in the name of my noble friend Lord Stevenson, on assessments for research. Requiring all research projects to be submitted for assessments could discourage or delay researchers in their important work, as various noble Lords mentioned. However, I understand that my noble friend’s main concern is around NHS data. I assure him that, if NHS data is used for research, individual patients cannot be identified unless either a patient has specifically agreed for that data to be shared or the Health Research Authority has approved an application for this information to be used, informed by advice from the independent and expert Confidentiality Advisory Group. Research projects using confidential patient data are always subject to rigorous governance, including the approval of an ethics committee; the Minister, my noble friend Lady Jones, mentioned this earlier. There are also strict controls around who can see the data and how it is used and stored. Nothing in this clause will change that approach.

I turn to Amendments 81 and 131 on consent. I understand the motivations behind adding consent as a safeguard. However, organisations such as the Health Research Authority have advised researchers against relying on consent under the UK GDPR; for instance, an imbalance of power may mean that consent cannot truly be “freely given”.

On Amendment 79, I am happy to reassure my noble friend Lord Stevenson that references to “consent” in Clause 71 do indeed fall under the definition in Article 4.11.

Lastly, I turn to Clause 77, which covers the notification exemption; we will discuss this in our debates on upcoming groups. The Government have identified a gap in the UK GDPR that may disproportionately affect researchers. Where data is not collected from the data subject, there is an exemption from notifying them if getting in contact would mean a disproportionate amount of effort. This does not apply to data collected from the data subject. However, in certain studies, such as those of degenerative neurological conditions, it can be impossible or involve a disproportionate effort to recontact data subjects to inform them of any change in the study. The Bill will therefore provide a limited exemption with strong safeguards for data subjects.

Numerous noble Lords asked various questions. They touched on matters that we care about very much: trust in the organisation asking for data; the transparency rules; public interest; societal value; the various definitions of “consent”; and, obviously, whether we can have confidence in what is collected. I will not do noble Lords’ important questions justice if I stand here and try to give answers on the fly, so I will do more than just write a letter to them: I will also ask officials to organise a technical briefing and meeting so that we can go into everyone’s concerns in detail.

With that, I hope that I have reassured noble Lords that there are strong protections in place for data subjects, including patients; and that, as such, noble Lords will feel content to withdraw or not press their amendments.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank those who participated in this debate very much indeed. It went a little further than I had intended in drafting these amendments, but it has raised really important issues which I think we will probably come back to, if not later in Committee, certainly at Report.

At the heart of what we discussed, we recognise, as the noble Baroness, Lady Kidron, put it, that our data held by the NHS—if that is a better way of saying it—is valuable both in financial terms and because it should and could bring better health in future. Therefore, we value it specifically among some of the other datasets that we are talking about, because it has a returning loop in it. It is of benefit not just to the individual but to the UK as a whole, and we must respect that.

However, the worry that underlies framing it in that way is that, at some point, a tempting offer will be made by a commercial body—perhaps one is already on the table—which would generate new funding for the NHS and our health more generally, but the price obtained for that will not reflect the value that we have put into it over the years and the individual data that is being collected. That lack of trust is at the heart of what we have been talking about. In a sense, these amendments are about trust, but they are also bigger. They are also about the whole question of what it is that the Government as a whole do on our behalf in holding our data and what value they will obtain for that—something which I think we will come back to on a later amendment.

I agree with much of what was said from all sides. I am very grateful to the noble Lords, Lord Kamall and Lord Holmes, from the Opposition for joining in the debate and discussion, and their points also need to be considered. The Minister replied in a very sensible and coherent way; I will read very carefully what he said in Hansard and we accept his kind offer of a technical briefing on the Bill—that would be most valuable. I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Clement-Jones (LD)]

My Lords, the problem is that I have a 10-minute speech and there are five minutes left before Hansard leaves us, so is it sensible to draw stumps at this point? I have not counted how many amendments I have, but I also wish to speak to the amendment by the noble and learned Lord, Lord Thomas. I would have thought it sensible to break at this point.

[Lord Leong (Lab)]

That is a sensible suggestion.

Debate on Amendment 87 adjourned.

Data (Use and Access) Bill [HL]

Lord Leong Excerpts

Committee stage
Tuesday 3rd December 2024 Grand Committee

[Viscount Camrose (Con)]

My Lords, this sequence of amendments is concerned with the publication and availability of guidance. Decision-makers are individuals responsible for deciding if a person has satisfied the conditions for authorisation to receive customer or business data. They may publish guidance on how they intend to exercise their functions. Given the nature of these responsibilities, these individuals are deciding who can receive information pertaining to individuals and businesses. The guidelines which set out how decisions are taken should be easily accessible and the best place for this is on their websites.

Following on from this point, Amendment 12 would require this guidance to be reviewed annually and any changes to be published, again on decision-makers’ websites, at least 28 days before coming into effect. This would ensure that the guidelines are fit for purpose and provide ample time for people affected by these changes to review them and act accordingly.

Amendments 13 and 14 seek to create similar requirements for enforcers—that is, a public authority authorised to carry out monitoring or enforcement of regulations under this part. Again, given the nature of these responsibilities, the guidelines should be easily accessible on the enforcer’s website and reviewed annually, with any changes published, again on their website, at least 28 days before coming into effect. This will, once again, ensure that the guidelines are fit for purpose and provide ample time for people affected by these changes to review them and act accordingly.

Finally, Amendment 15 would require the Secretary of State or the Treasury to provide guidance on who may be charged a fee under Clause 6(1) and to review it annually. Ensuring the regular review of guidelines will ensure their effectiveness, and the ready availability of guidelines will ensure that they are used and observed. I therefore believe that these amendments will be of benefit to the functioning of the Bill and should be given consideration by the Minister.

[Lord Leong (Lab)]

My Lords, I thank the noble Viscount, Lord Camrose, for those amendments. I will cover the final group of amendments to Part 1, dealing with smart data guidance.

On Amendments 11, 12, 13 and 14, which relate to the publishing of the guidelines, I am pleased to confirm that Clause 5(4) clarifies that regulations may make provisions about the providing or publishing of business data. This includes the location where they should be published, including, as the noble Viscount suggests, the website of the responsible person.

Furthermore, Clause 21 clarifies that regulation may make provision about the form and manner in which things must be done. That provision can be used to establish appropriate processes around the sharing of information and guidance, including its regular update, publication and sharing with the relevant person.

Amendment 15 refers to the amount of fee charged and how it should be determined. The power is already broad enough to allow the information to be reviewed as and when necessary, but to mandate that the review must take place at least once a year may be a bit restrictive. For these reasons, I ask the noble Viscount not to press his amendments.

[Viscount Camrose (Con)]

I thank the noble Lord for his answers. I understand what he says, although I would be grateful if either he or the noble Baroness, Lady Jones, could summarise those points in writing because I did not quite capture them all. If I understand correctly, all the concerns that we have raised are dealt with in other areas of the Bill, but if they could write to me then that would be great. I beg leave to withdraw the amendment.

Post Office Horizon: Redress

Lord Leong Excerpts

Tuesday 10th September 2024 Lords Chamber

[Baroness Jones of Whitchurch (Lab)]

My Lords, I hope that the individuals to which the noble Lord refers will be picked up by one of the number of schemes we now have. We now have what I hope is a comprehensive set of schemes that apply to all circumstances, so my understanding is that people who left because they were suffering hardship while not necessarily having a conviction should be covered by the scheme.

[Lord Leong (Lab)]

I beg to move that the House be adjourned for a period of five minutes.