Employment Rights Bill

Lord Murray of Blidworth Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

We need those guidelines, and before we get to Report we need to understand how the Minister and the Government will take this forward. That is the only issue: we need to fill in the details. This straw man is indeed a straw man. I genuinely believe that the Government are right to pursue this, and we on these Benches will support that.

[Lord Murray of Blidworth (Con)]

My Lords, before my noble friend speaks from the Front Bench, I wonder whether I might contribute. I apologise to the Committee that I did not leap to my feet prior—

[Lord Fox (LD)]

Was the noble Lord in the Chamber at the beginning of the debate?

[Lord Murray of Blidworth (Con)]

I was—I was sitting over there. I apologise to the noble Lord, Lord Fox, for speaking after him. I am sure he is welcome to speak after me if he disagrees with anything I have to say.

Obviously, I am a barrister, as are many of the contributors this evening. I practised in the employment tribunal and in human rights, and I am a member of the Joint Committee on Human Rights. The Joint Committee wrote to the Government in respect of the Bill, expressing concerns that were reflected by the Equality and Human Rights Commission: in particular, the potential for a conflict between the right to freedom of expression, guaranteed by Article 10—as we have heard from various noble Lords—and the Article 8 right to a private and family life. That balancing exercise would be difficult for many employers to carry out.

The previous iterations of measures of this type included safeguards which have been omitted from the Bill, as the noble Lord, Lord Young, pointed out. In the Worker Protection (Amendment of Equality Act 2010) Act 2023 there was a measure that sought to place a duty on employers to take reasonable steps to prevent sexual harassment of their employees, and which is now Section 40A of the Equality Act. During its passage through Parliament, that Bill included provisions which sought to introduce a duty on employers to prevent non-sexual harassment of their employees by third parties. That was Clause 1 of that Bill, as brought from the House of Commons. That provision failed. It would have required all reasonable steps to have been taken to prevent harassment of the employee, solely because they did not seek to prevent the expression of an opinion in circumstances where the conduct constituting harassment involved a conversation in which an employee was not a participant.

In short, the Government have so far failed to answer the question from the Joint Committee about their reasoning for not including a similar carve-out for overheard opinions in the new duty in Clause 20. That was echoed in the original iteration of the Equality Act 2010, passed by the previous Labour Government, under Section 40(2) to (4). That would have required an employer to be liable for third-party harassment where they had failed to take such steps as would have been reasonably practicable to prevent the harassment. However, to be liable, the employer would have had to have known that the employee had been harassed by a third party on at least two other occasions.

The Government have decided not to adopt the same three-strike policy taken in the equivalent provisions or in the earlier potential measure proposed in the 2023 Act. Instead, we have a rule-making power that is said to provide what steps are to be regarded as reasonable. To my mind, that sits uneasily with the mandatory terms set out in new subsection (1A). For those reasons, it should not be part of this legislation.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank my noble friends Lord Young of Acton and Lady Noakes very much for their expert, valuable and important introductions to and insights into this group. I also thank my noble friends Lady Meyer, Lady Lawlor, Lady Cash, Lord Strathcarron, Lord Ashcombe and Lord Murray for their practical, legal and philosophical objections to Clause 20, which, as noble Lords will perhaps not be surprised to know, I do not regard as straw-man arguments. It was also wise of my noble friends to note that these amendments have the support of UKHospitality. They also have the support of the British Beer and Pub Association.

These amendments are vital in ensuring that we do not inadvertently restrict fundamental rights of free expression in the workplace and beyond. We all recognise the importance of protecting employees from harassment. It is not about not caring about their plight, as the noble Lord, Lord Fox, implied; it is about also ensuring that we are not creating a framework that stifles open and honest conversation. That is especially true in matters of political, moral, religious or social debate.

Clause 20 as it stands is, as my noble friend Lady Cash pointed out, poorly drafted and therefore risks leading to unintended consequences. In fact, I agree with the comments of the noble Baroness, Lady Deech, about the speech from the noble Baroness, Lady Carberry, who made a very persuasive case that Clause 20 is superfluous in its current form.

The inclusion of speech or conversation that simply expresses an opinion on a political, moral, religious or social issue would lead to significant restrictions on individuals’ freedom to speak openly. This could lead to employees feeling that they cannot express their thoughts and ideas or, perhaps worse, would be penalised for expressing an opinion that someone else may find uncomfortable or offensive. As my noble friend pointed out, we must be mindful of the unintended consequences that could arise from an overbroad definition of harassment. Both he and the noble Lord, Lord Londesborough, gave strong examples from the footballing world. If I may speak as a fellow West Ham United fan, I am very aware that being a supporter of that august club can be a very testing experience that can drive one to the occasional profanity.

It is not just in sports that these concerns arise. Think about public spaces such as pubs, about which we have been hearing. If an individual overhears a conversation that they find offensive or upsetting, where does the line lie? What happens if somebody misunderstands something that is said and it is taken to an employment tribunal as a case of harassment? In such situations, the burden placed on employers would become unreasonable. Would they be required to intervene every time someone overhears an opinion that they find discomforting or just dislike?

If I may ask a genuine question, how are people supposed to judge, to quote the noble Baroness, Lady Carberry, whether a conversation is obviously fake or not? As my noble friend Lord Young and the noble Lord, Lord Londesborough, argued, are we expecting publicans to make finely calibrated judgments on ECHR Article 10 in particular? We should remember that even senior police officers, who are trained in these matters, often struggle to make such judgments. Employers will inevitably err on the side of caution and that is chilling.

I believe that we must ensure that harassment in this context remains focused on behaviours that are truly indecent or grossly offensive, not on speech that is merely uncomfortable or challenging. People must have the right to engage in conversations, to express differing opinions and to debate issues of public importance without the fear of being accused of harassment. To allow an employer to be forced or encouraged into silencing this kind of expression would be a serious violation of freedom of speech, which is a cornerstone of our democracy and society.

The amendments before us offer balance. They ensure that employers are not required to protect their employees from hearing or overhearing expressions of opinion, provided that those opinions are not indecent or grossly offensive. This is a reasonable and sensible approach. It respects individuals’ rights to express their views without creating an environment where every opinion has the potential to be deemed harassment.

Moreover, these amendments recognise the specific context in which such protections should apply. By excluding certain sectors, such as the hospitality industry, sports venues and higher education, we acknowledge the diverse nature of these environments where debate, disagreement and the expression of differing opinions are often the fabric of daily life. To apply the same strict rules in these settings as we would in an office environment or a more controlled space would be misguided. The noble Lord, Lord Fox, may well say that this is not the purpose of Clause 20. However, as my noble friends Lady Cash and Lord Murray pointed out, the drafting means that that is unlikely to be the effect.

The requirement for repeated instances of harassment before an employer must take action, as outlined in Amendment 86, aligns with the principle of proportionality. We should not expect employers to become the arbiters of every comment or opinion expressed, especially when such comments are made in good faith. The amendment rightly recognises that harassment should be defined as something that occurs repeatedly, not something that might result from a single isolated incident of disagreement or discomfort. I agree with my noble friend Lord Young of Acton that this is a solution in search of a problem or, based on his statistics, a sledgehammer in search of a nut.

When the Minister responds, can she please answer my noble friend Lady Noakes’s point on territorial extent? These issues are clearly not going away, so I urge the Government to take them very seriously. As it stands, Clause 20 is garbled and needs rewriting.

--- Later in debate ---

[Baroness Jones of Whitchurch (Lab)]

I thought I had explained that in my description, and I do not really want to have to repeat it. I explained the grounds that would be considered when comparing harassment with acceptable behaviour.

Amendment 85 also seeks to significantly reduce the scope of Clause 20 by excluding the hospitality sector, sports venues and higher education. This would create a disparity and a hierarchy of protections across employers and sectors, leaving swathes of employees without equal protection. This cannot be justified, given that employers in these sectors will be required only to do what is reasonable, and this will depend on their specific circumstances.

Amendment 86 seeks to reinstate the three-strike rule that was repealed in 2013. However, as I have explained, an isolated or one-off incident is much less likely to amount to harassment than continuing acts. The recent Free Speech Union campaign against this clause stated that

“when the Equality Act was originally passed, it included a clause making employers liable for the harassment of employees by third parties, but it was repealed in 2013 because it proved to be so costly and difficult for employers to comply with. We mustn’t make the same mistake again”.

We agree that we should not make that mistake again. We cannot see why the noble Lord, Lord Young of Acton, would wish to impose on employers the unnecessary costs and burdens that this amendment would bring. By contrast, the Government’s approach will make it simpler for employers to understand their obligations and will ensure that victims can be confident that they are protected by law.

[Lord Murray of Blidworth (Con)]

In relation to the last passage of the Minister’s speech, it appears to be the Government’s position that it is not accepted that carve-outs for three strikes are necessary because that would impose a burden on business. The Explanatory Notes to the Bill, and to the Equality Act, specifically state that in determining the effect of the unwanted conduct, courts and tribunals must balance competing rights on the facts of a particular case—the point that the Minister has just made. Will she not accept that the effect of the provision, as presently drafted, will be for a sensible employer to take overly defensive approaches to prevent actions being brought against them under these provisions? It is that reaction which will cause a stifling of free speech, and this Committee should be very worried about that.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I cannot see why we should carve out some of the most customer-facing sectors, where the sorts of harassment we are talking about are probably more prevalent. I cannot see the point of that. Surely every employee in this country has the same right to be protected from harassment, and that is what we are attempting to achieve. Most of the pubs and sports grounds that I frequent already have these policies, so it is a minority of pubs—obviously the sorts of pubs that the noble Lord, Lord Young, likes to go to—that do not have them. I think most people would like to frequent places where they feel that the employees are treated with respect and are protected.

Employment Rights Bill

Lord Murray of Blidworth Excerpts

Committee stage
Tuesday 29th April 2025 Lords Chamber

[Baroness Kramer (LD)]

My Lords, as everyone knows, I am very new to this piece of legislation. I do not know whether “shambles” is a parliamentary term, but 27 amendments at this point, after going through the other House and now coming to this House, is completely unacceptable. A Bill needs to be developed virtually to its finish point before it enters the legislative process, not be continuously revived as it travels on through. That is not the way these Houses are meant to operate.

I was struggling to follow the Minister as he described this, not because he is unclear but because he is tackling such complexity within these regulations. I am going to go back and say to the team that they will have to read Hansard multiple times and then keep double-checking the amendments to have a feel for what is going on here. These are not just technical; it is reasonably obvious that they are not. Will we at the very least get a detailed code of conduct? People outside these Houses will have to apply all of this and will need real clarity. I work with employment tribunals, admittedly on whistleblowing issues, and I am incredibly conscious that this is the kind of thing that leads to them being flooded with even more cases—and employment tribunals are a part of the court system that does not have that capacity.

I ask that the Government rethink whether there are areas where the Bill is inappropriate or undeveloped and somehow find a way to bring all those issues very rapidly to the attention of parliamentarians. This is no way to carry out legislation, to ask us to apply sensible scrutiny when it is impossible to get to the bottom and the root of what is being presented to us.

[Lord Murray of Blidworth (Con)]

My Lords, I agree with the noble Baroness, Lady Kramer, and my noble friend Lady Coffey. It is frankly not acceptable for the Government at this stage in a Bill to lay this many amendments of this magnitude to the policy in the phase of the Bill as it is travelling through the upper House. These measures will receive no scrutiny from the elected House. It is frankly not constitutionally proper to use this method. It should be used for only minor and technical amendments, and by no measure can these proposals be put into that category. The Government should be very ashamed about this. Frankly, the correct way of proceeding would be to withdraw the Bill and start again, and to lay this entire Bill back before the Commons so that it can be properly scrutinised in accordance with our conventional norms.

[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.