Worker Protection (Amendment of Equality Act 2010) Bill

Lord Moylan Excerpts

2nd reading
Friday 24th March 2023 Lords Chamber

[Lord Moylan (Con)]

My Lords, it pains me to find myself in disagreement with the noble Baroness, Lady Burt of Solihull, with whom I have worked on another cause in your Lordships’ House and for whom that I have the highest respect. I know she is motivated only by the highest considerations in bringing forward this Bill.

First, I shall address Clause 2, which I do not think has been mentioned so far. I wish to summarise and dispose of it, so to speak, but I want to come back to it later, which is why I think it is worth mentioning. Clause 2 imposes a duty on employers to prevent sexual harassment in the workplace. It is already the case that sexual harassment in the workplace can give rise to actions against employers, but there is no corresponding duty on their part to prevent it happening. This clause is aimed at filling that gap—uncontroversially, in my view—and that is absolutely fine.

The meat of the Bill is in Clause 1. Clause 1 is an attempt to respond to, in some ways, the events that occurred at the Presidents Club dinner some years ago, which, I say straight away, in my opinion were wholly reprehensible and should not have been allowed to happen, and the people involved should have some form of redress. I believe they do but not necessarily through the Equality Act as it stands, hence Clause 1 coming forward to address those issues.

I am grateful to the noble Baroness, Lady Burt, for arranging a meeting for me with the Government Equalities Office, which supports the Bill. I am grateful too for the written briefing that I have had from the Fawcett Society, in which it draws attention to the fact that 56% of women working in the hospitality sector experience sexual harassment. That is clearly unacceptable, but the first question to ask is: does Clause 1 do anything for them? What does it do for the people who served and were abused at the Presidents Club dinner? I think it probably does nothing for them at all, because it specifically says that it applies to employees.

I know nothing about the Presidents Club dinner and the particular arrangements on that occasion, but I know that, in general, it is the case that where large banquets and other events like that take place, even in hotels, the staff are normally supplied by a silver service agency, which does not employ them in the first place. I once had an office in the same corridor as a silver service agency—a very reputable firm that supplied staff to many events throughout London. The office was occupied only by the owner of the business and his secretary; there were no other employees. The staff who were supplied to wait at table at such events were very often students and people like that. They were part of a contact list, and the owner would assemble these people as occasion required. They were contract workers. Section 40 of the Equality Act defines employees, and generally speaking the status of employee arises for someone who has a contract of employment. However, a contract worker is not an employee, and they are dealt with in a separate part of the Equality Act.

So my first comment is that I do not think that Clause 1 would have done anything at all for staff working at the Presidents Club dinner, nor would it do anything for other people in similar circumstances, because large numbers of people in the hospitality sector are not in employed status but are in fact contract workers. It seems to me that the Bill does not even do what it intends and sets out to do.

Secondly—again taking the Presidents Club dinner as the starting point—the Bill chooses to go way beyond sexual harassment. Clause 2 is about sexual harassment but is not pertinent to the Presidents Club dinner. Clause 1 defines the harassment simply as “harassment”; it does not say “sexual harassment”. However, in Section 26 of the Equality Act harassment is defined, and it covers all relevant protected characteristics. So the Bill goes way beyond sexual harassment, as I think my noble friend Lord Strathcarron mentioned, and would concern religion and all the other protected characteristics in the Act. That seems to me to be an overreach and a misfiring of the Bill, which could be so much better targeted at the evil that it intends to address.

This brings us to the freedom of speech problems. Because the net has been cast so wide and covers all protected characteristics, the problems that my noble friend Lord Strathcarron instantiated in relation to his own experience as a modest publisher and a trustee of a museum immediately arise. In places with large numbers of persons having access, the policies that will need to be put in place will need to be very in-the-face of those who are likely to have access to such an event. I do not know what they will consist of, but—this is another important point—they all have to be reasonable steps.

The Fawcett Society brief says that employers will be required to take “reasonable steps”. That is not what the Bill says; it says, “all reasonable steps”. There is a world of difference in law, as I understand it, between “reasonable steps” and “all reasonable steps”. A small business, which might take the reasonable steps that it can see for itself but which fails to take other steps that larger businesses are taking—perhaps it is not even aware that those larger businesses are taking those steps—would be found to have failed to have taken all reasonable steps. At the very least, it should be required to do what the Fawcett Society thinks it will be doing and take “reasonable steps”. In my view, the word “all” needs to be removed.

I will now slightly repeat a point made by my noble friend Lord Strathcarron in coming to the question of the defence inserted by the Commons in new subsections (1C) and (1D). The meat is in new subsection (1C), where we find conditions which have to be met before that particular section can be prayed in aid by an employer. As drafted, all those conditions have to be met. I will not read them out because noble Lords have them in front of them and they are easily read, but each is quite onerous in itself, and cumulatively they will barely be available to employers when they come to an employment tribunal, should they do so. All this will do is result in more and more policies and more and more compliance culture as employers attempt to protect themselves from being sued, because their objective is to avoid ending up in an employment tribunal in the first place rather than to have a defence when they get there, which is completely understandable.

My final point is more of a query, because I am doing my very best on this. The noble Baroness, Lady Burt of Solihull, said that there would be a statutory code of conduct issued by the Equality and Human Rights Commission, which would show how the Bill would work. However, I cannot find it in the Bill; I cannot find a basis in the Bill for such a code of conduct. The notes produced by our own Library in the House of Lords say, as the noble Baroness said, that there will be a statutory code of conduct and that this is referred to in the Explanatory Notes. Look though I might in the Explanatory Notes, I cannot find that either. But then I note that the Library note puts this remark about a statutory code under its explication of Clause 2, so it possibly means that there will be a statutory code of conduct in relation to Clause 2. That would be absolutely fine—I have come back to Clause 2, as I said I would. I regard Clause 2 as uncontroversial, so supporting it with a statutory code of conduct seems to be a sensible step. But where is the evidence that there will be statutory code of conduct in relation to Clause 1, which is the one that is causing us so much difficulty?

Moreover, a point of considerable concern is that even if we find that there is to be such a statutory code of conduct—my noble friend the Minister might be able to give an assurance and explain what its statutory basis is—we are, in effect, outsourcing to the commission most of the substance of the operation of this clause that we are being asked to approve today. I think that is rather troublesome.

I do not say, as my noble friend did, that this piece of legislation has been rushed. I do not know whether it has been rushed, but it is ill thought out and misses the point. It does not do anything for the people it is trying to help, and it creates difficulties in other areas. My view is that it would be sensible if it were withdrawn and rethought; otherwise, it will have to be amended in Committee.

--- Later in debate ---

[Lord Moylan (Con)]

Without referring specifically to the Presidents Club dinner, because none of us knows the actual facts of that, I ask in general terms whether, for a large banquet served by persons supplied by a silver service, the liable employer—given that they are not employed—would be the silver service company, the organisers of the banquet or indeed the owners of the premises, which might be an hotel, in which the banquet took place.

[Baroness Scott of Bybrook (Con)]

I will not answer my noble friend, as I do not have a degree in employment law, but I will ensure that I find the answer for him and put a copy in the Library.

My noble friend Lord Moylan also asked why there are so many conditions in the Commons amendment. I understand that a number of conditions all need to be met for the amendment introduced in the other place to be triggered.

I think that is everything. If I have not answered everyone’s questions, I will look in Hansard and make sure that I get a written answer to everyone. At the same time, if noble Lords still have concerns about the Bill and its contents, I would be more than happy to discuss it further with officials. I am happy for anyone to get in touch with me—we will put something in the diary.

I end by underscoring the cross-party support that the Bill enjoyed in the other place, where speakers from all walks of life appealed to this House to maintain that collaborative spirit. So it is with particular determination that I now commend the Bill to the House. The Government are proud to back it and wish it safe passage through its remaining stages.