Employment Rights Bill

Debate between Lord Marks of Henley-on-Thames and Lord Pannick

Report stage
Wednesday 23rd July 2025 Lords Chamber

[Lord Pannick (CB)]

Is it really appropriate for a Secretary of State to insist that the circumstances relating to an individual are publicly exposed—subject to cross-examination, subject to a public judgment—when the individual whose private rights are the subject of those proceedings wishes, no doubt for good reason, that they not be so exposed? Is it really appropriate?

[Lord Marks of Henley-on-Thames (LD)]

I venture to suggest that in some circumstances it might be, but I add an important point, which is that my party has been involved in discussions with the Government about the protection of such a worker.

[Lord Marks of Henley-on-Thames (LD)]

There is nothing secret about any such discussions. They relate to anonymity for such a worker and the restrictions on publicity that might protect such a worker from exactly the dangers and difficulties that the noble Lord, Lord Pannick, suggests and envisages. But the Secretary of State might, in a given case, take the view that an issue of law or principle was involved, with wider ramifications going beyond that particular case, and that the public interest required the issue to be determined. With respect to all the arguments that have been put by those who have spoken before me, I am not sure that any of those arguments met that possibility, certainly not in the way in which the noble Lord, Lord Murray, expressed it. Even the moderate tones of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Garnier, a colleague of mine, failed to deal comprehensively with that suggestion.

[Lord Pannick (CB)]

This is a very important matter. Surely the answer to his concern that the individual case may raise wider, broader issues is that it is absolutely inevitable in those circumstances that there will be other affected workers, one of whom no doubt will bring proceedings. We do not need the Secretary of State to bring proceedings in those circumstances. It is inconceivable.

[Lord Marks of Henley-on-Thames (LD)]

There might be others. Then again, there might not. I quite accept that a Secretary of State would have to weigh up very carefully the competing considerations in favour of the public interest in having a point determined against the private interest of the worker concerned in not being involved in any way in litigation. Of course, the worker concerned does not have to be involved; proceedings are brought—this is a point I will come on to in a moment—as if he were involved, but the point may need determination in any case.

I think I have covered the point about the public interest, which I suspect is the argument that we will hear from the Government. Nevertheless, and on a point that the noble Lord, Lord Carter, made, in a case where Section 113 is invoked, I suggest that it would be utterly wrong for such a worker to be exposed to risk by the Secretary of State proceeding with such a case. I have dealt with the point about anonymity and circumscribing publicity, and I suggest that this must be addressed before this clause becomes law.

[Lord Marks of Henley-on-Thames (LD)]

Such protections as would be afforded would depend on the individual case and on such measures as the tribunal thought appropriate; they might indeed include anonymity or witness protection in an extreme case. I do not believe that that is likely, but I do believe that the right of the worker to some sort of privacy, in a case in which he positively did not want to be identified, would have to be protected.

Going on to my point about the risk in costs, I suggest that it would be simply unconscionable if the decision of the Secretary of the State to take proceedings could expose the worker to a risk in costs. There is no protection in the Bill for a worker on this point; indeed, in subsections (3) and (6) in particular, there is the clear suggestion that there would be a risk in costs for an unwilling worker claimant. Specifically, subsection (3) would provide that, if the Secretary of State brings such proceedings, they are

“to be proceeded with as if they had been brought by the worker”,

and that needs to be addressed. As the noble Lord, Lord Carter, pointed out, subsection (6) will provide that:

“The Secretary of State is not liable to any worker for anything done (or omitted to be done) in, or in connection with, the discharge or purported discharge of the Secretary of State’s functions by virtue of this section”.


That, in my submission, renders the worker vulnerable to an order in costs and there ought to be an indemnity against any such order. I accept that there is not one; the question is therefore whether that can be addressed by the Government. It is not a question that leads to a stand part decision that the clause should be left out of the Bill altogether.

We would of course hope that no employment tribunal would make a costs order against a worker in such circumstances, but this House should not proceed on the basis of hope alone; the possibility remains, particularly if the tribunal were to take a dim view of the worker’s conduct. That, we should remember, may be exactly the conduct that sensibly dissuaded the worker from launching proceedings in the first place.

I invite the Government to bring forward an amendment, hopefully by agreement at Third Reading, whereby protection from this risk in costs could be given to a worker, either by way of indemnity by the Secretary of State or by a prohibition on a costs order. I also urge the Government to look at the other protections that the worker might have. Alternatively, the Government might consider giving solid assurances to meet this point. I give way to the noble Lord.

[Lord Pannick (CB)]

Can I ask for the noble Lord’s assistance? He mentioned that, according to subsection (3),

“the proceedings are to be proceeded with as if they had been brought by the worker”.

Does he think that that means that if the worker decides to withdraw the proceedings, they are to be treated as withdrawn?

[Lord Marks of Henley-on-Thames (LD)]

The noble Lord has plainly given the Government solid pause for thought on that point, because of course any proceedings before a tribunal of first instance can be withdrawn by the litigants. The litigants in this case would be the Secretary of State and the other party—presumably the employer. If subsection (3) is given the interpretation that the noble Lord, Lord Pannick, suggests might be given to it, the worker would be treated as the litigant. That is a difficult point for the courts to resolve. It is a point that at Third Reading the Government really must resolve, and that I entirely accept.