Employment Rights Bill (Tenth sitting)

Alex McIntyre Excerpts

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[The Chair]

I remind the Committee that with this we are considering the following:

Amendment 130, in clause 16, page 30, line 24, at end insert—

“(1D) In exercising their duties under this section, an employer must have regard to protecting freedom of expression.

(1E) In subsection (1D), ‘freedom of expression’ is defined in accordance with Schedule 1 of the Human Rights Act 1998.”

This amendment would require employers to have regard to protecting freedom of expression when exercising the Bill’s duty not to permit harassment of their employees.

Amendment 131, in clause 16, page 30, line 24, at end insert—

“(1D) Subsection (1A) shall not apply to—

(a) higher education institutions, or

(b) providers of─

(i) hotels and similar accommodation;

(ii) holiday and other short-stay accommodation;

(iii) restaurants and mobile food service activities; and

(iv) beverage serving activities.”

This amendment would exclude higher education institutions and hospitality providers from the Bill’s duties for employers not to permit harassment of their employees.

Clauses 16 and 17 stand part.

New clause 29—Employer duties on harassment: impact assessment—

“(1) The Secretary of State must carry out an assessment of the likely impact of sections 15 to 18 of this Act on employers.

(2) The assessment must—

(a) report on the extent to which the prevalence of third-party harassment makes the case for the measures in sections 15 to 18;

(b) include an assessment of the impact of sections 15 to 18 on free speech;

(c) include an assessment of the likely costs to employers of sections 15 to 18;

(d) include—

(i) an assessment of which occupations might be at particular risk of third-party harassment through no fault of the employer, and

(ii) proposals for mitigations that can be put in place for employers employing people in such occupations.

(3) The Secretary of State must lay a report setting out the findings of the assessment before each House of Parliament.”

This new clause requires the Secretary of State to assess the impact of the provisions of Clauses 15 to 18.

New clause 39—Duty to prevent violence and harassment in the workplace—

“(1) Section 2 of the Health and Safety at Work etc. Act 1974 is amended as follows.

(2) After subsection (2)(e) insert—

‘(f) the adoption of proactive and preventative measures to protect all persons working in their workplace from violence and harassment, including—

(i) gender-based violence;

(ii) sexual harassment;

(iii) psychological and emotional abuse;

(iv) physical and sexual abuse;

(v) stalking and harassment, including online harassment;

(vi) threats of violence.’

(3) After subsection (3) insert—

‘(3A) It shall be the duty of every employer to prepare, and as often as may be appropriate revise, an assessment to identify potential risks of violence and harassment in the workplace and implement policies and procedures to eliminate these risks so far as is reasonably practicable.

(3B) It shall be the duty of every employer to provide training to all employees on recognising and preventing violence and harassment in the workplace, with a focus on gender-responsive approaches.

(3C) In subsection (3B) a “gender-responsive approach” means taking into account the various needs, interests, and experiences of people of different gender identities, including women and girls, when designing and implementing policies and procedures.

(3D) In this section, “persons working in the workplace” includes—

(a) employees;

(b) full-time, part-time, and temporary workers; and

(c) interns and apprentices.

(3E) In subsection (2)(f) and subsections (3A) and (3B), a reference to the workplace includes remote and hybrid work environments.’”

This new clause will amend the Health and Safety at Work etc. Act 1974 to place a duty on employers to protect all those working in their workplace from gender-based violence and harassment.

New clause 40—Expanded duties of the Health and Safety Executive—

“In the Health and Safety at Work etc. Act 1974, after section 11 (functions of the Executive) insert—

‘11ZA Duties of the Executive: health and safety framework on violence and harassment

(1) It shall be the duty of the Executive to develop, publish and as often as may be appropriate revise a health and safety framework on violence and harassment in the workplace.

(2) This framework shall include specific provisions relating to—

(a) the prevention of gender-based violence and harassment of those in the workplace including the prevention of physical, emotional, and psychological abuse;

(b) the duty of employers to create safe and inclusive workplaces and the preventative measures they must adopt; and

(c) the use of monitoring and enforcement mechanisms to ensure compliance with the duty of the employer in relation to violence and harassment (see section 2(2)(f)).

(3) The Executive shall work with other relevant bodies, including the Equality and Human Rights Commission and law enforcement agencies, to develop and revise this framework.

11ZB Duties of the Executive: guidance for employers

The Executive shall, in consultation with such other persons as it considers to be relevant, issue guidance for employers about the protection of those facing violence and harassment on the basis of gender in the workplace by—

(a) implementing workplace policies to prevent violence and harassment;

(b) establishing confidential reporting mechanisms to allow victims to report incidents;

(c) conducting risk assessments and ensuring compliance with the health and safety framework (see section 11ZA);

(d) reporting and addressing incidents of violence and harassment; and

(e) supporting victims of violence and harassment, including making accommodations in the workplace to support such victims.’”

This new clause will create a duty on the Health and Safety Executive to develop a health and safety framework on violence and harassment and to issue guidance for employers about the protection of those facing violence and harassment on the basis of gender in the workplace.

Amendment 135, in clause 118, page 105, line 20, at end insert—

“(3A) But no regulations under subsection (3) may be made to bring into force sections 15 to 18 of this Act until the findings set out in the report under section [employer duties on harassment: impact assessment] have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown.”

This amendment is linked to NC29.

[Alex McIntyre (Gloucester) (Lab)]

It is a pleasure to serve under your chairship this afternoon, Mr Stringer. I welcome the Bill, and this clause is a really important part of it. We are introducing the clause to improve the workplace treatment of individuals who suffer harassment. Before the lunch break, we heard an interesting interpretation of the legislation, but sadly, it was not correct in all places, and I would like to go through some points made by the shadow Minister, the hon. Member for Mid Buckinghamshire. As part of that, I will reflect from the beginning that the Fawcett Society has found that 40% of women have experienced workplace harassment, and women who are marginalised for other reasons, such as race or disability, face an increased risk of and different forms of harassment, including sexual harassment in the workplace.

This clause is a vital part of the legislation, because we know—we heard this in evidence a few weeks ago—that harassment does not always come from a fellow employee or an employer. Quite often, it can come from third parties, particularly in some of the sectors that the Opposition seek to exclude with their amendment. We heard particularly from UKHospitality about the impact of third-party harassment in the hospitality sector, and I have shared my experience of being harassed in the workplace while working in the hospitality sector as a 15-year-old. This is really important. My example was only one—frankly, there will be thousands of examples—and I know that my experience as a young man will be very different from the experiences of women working in hospitality up and down the country.

As we enter the Christmas party season, we will see a massive increase in workplace harassment—not just sexual harassment, but other forms of harassment. This is perhaps where we got into some confusion this morning. There are different types of harassment, and the type that we talked about in particular this morning was harassment under the Equality Act 2010. That has a very specific definition, which will not be changed by the proposed legislation, despite what the shadow Minister said. A different test will be applied to that definition in terms of when it might come into play, but the definition of harassment will not change. Therefore, for something to be harassment, it must be unwanted conduct relating to somebody’s protected characteristic and create an offensive environment, or one that degrades, humiliates or embarrasses individuals.

The hon. Member for West Suffolk tried to introduce a few examples around the free speech argument, but those did not support the argument that he tried to make. The Independent Press Standards Organisation found that there was no harassment in the Gareth Roberts case. It found that there was a lower form of conduct in relation to clause 12(i) of the IPSO code of practice, but there was no harassment.

[Nick Timothy (West Suffolk) (Con)]

Will the hon. Gentleman give way?

[Alex McIntyre]

I will, if the hon. Gentleman wants to correct the record.

[Nick Timothy]

I have absolutely no intention of correcting the record, because the record will be correct. I think the hon. Member misunderstands my point, which was not to say that in that case the conduct was an example of harassment; I am fully aware that the IPSO ruling said that it was not harassment. My point was about the laws of unintended consequences. When IPSO was established, I do not think anybody thought that there would be cases such as this, where a journalist would be penalised by IPSO for saying something that IPSO acknowledges was a statement of fact on the grounds that it may be offensive.

[Alex McIntyre]

I thank the hon. Member for his intervention, but the fact is that in these circumstances, the definition in the Equality Act is clear. There is already an abundance of case law on what constitutes harassment, particularly in relation to the Equality Act, the different types of protected characteristics and the actions required to reach that threshold. The threshold is not just that there is unwanted conduct or that it relates to a protected characteristic; it is about the environment that is created. There is an abundance of case law on that point.

The second example was about my right hon. Friend the Health Secretary, but again it missed the point entirely. We all enjoy comedy, which is a staple of our culture. Jokes are fine unless they start to become unwanted and are aimed at protected characteristics, such as someone’s gender, gender identity or sexual orientation. The other point that that example missed—we spoke at length about comedy clubs, and I hate to raise them again—is that the Bill is not about punters at a comedy club being offended by what they hear on stage; it is about protecting the employees. For somebody to trigger this legislation, the comedian would have to make a joke directed at one of the employee’s protected characteristics. If the club employs a member of bar staff who has a protected characteristic and the comedian on stage consistently and absolutely humiliates them because of it, one might expect the employer to take some reasonable steps, such as not booking that comedian again, so that the individual is not consistently humiliated on a regular basis because of one of their protected characteristics. That is what the Bill is intended to do.

We are not saying that employers are required to stop all harassment in the workplace; that would not be possible. As the shadow Minister rightly said, there will be cases when somebody comes into a bar during a Christmas party, inebriated, having enjoyed far too much free wine, and says something that is offensive and horrifically wrong, and with which we all across this House would disagree. The Bill requires employers to have policies in place to deal with that. We cannot legislate for the unknown. We cannot legislate for serious circumstances that we cannot predict or for every individual who walks into a bar, but we can have policies in place to deal with those things.

[Sir Ashley Fox (Bridgwater) (Con)]

Surely one of the unintended consequences of this proposal is that small businesses risk lawsuits from employees who perceive that they have been harassed, perhaps by a third party. The inevitable lawsuit then follows, and it is not so much the offence for the employer that is the problem; it is the legal fees, the time, the effort and the distraction. What I find most concerning about this proposal is that the Minister says that the impact assessment will follow. Our amendment says that this provision should not be introduced before an impact assessment has been carried out. Does the hon. Member for Gloucester not think, given the doubt and uncertainties about the effect of this Bill, that it would be more sensible to have the impact assessment first before exposing small businesses to unintended consequences?

[Alex McIntyre]

If the hon. Gentleman is inviting me to agree that there should be a two-tier system, whereby employees at small businesses are entitled to be harassed by third parties but employees at larger businesses are not, I have to disagree.

[Sir Ashley Fox]

The hon. Gentleman knows I am not saying that.

[Alex McIntyre]

Well, a great deal of things are protected under law. Employees who work for businesses of all sizes are entitled to protection from harassment under the law, and I do not think that we in this House disagree with that principle.

I come back to the reasonableness test. A small business can have a claim brought against it for a whole host of reasons under employment legislation. Claims can be brought for discrimination or for whistleblowing, and that comes at a cost to employers. There is a separate discussion to be had about how to ensure that employment tribunals work for businesses of all sizes, but the point that we are debating is about harassment in the workplace under the Equality Act.

One of the key points that we must keep coming back to is that it does not really matter to the victim whether they are harassed by a third party, a fellow employee or their employer; the impact on them is exactly the same. Disregarding people who work for small businesses and not giving them the protections that are afforded to everybody else is just not acceptable.

[Sir Ashley Fox]

It clearly does make a great deal of difference to both the employee and the employer where the harassment comes from. If an employer is harassing an employee, they are directly responsible for those actions and they should rightly be held accountable. If the harassment comes from a third party—the drunk person who comes into the pub or into A&E—there is surely a complete difference. The hon. Member is asking for the employer to be responsible for that unless they take all reasonable steps. This clause then exposes that businessman—that small employer—to legal action on something he cannot control.

[Alex McIntyre]

I thank the hon. Member for setting out the difference. The difference is the “all reasonable steps” test. If an employer harasses someone in the workplace, there is no “all reasonable steps” test that they can take; for a third party, there is.

In tribunals, “reasonable” takes into account, for example, the circumstances of the case, the size of the business, the sector it operates in, the policies it has in place and the training it provides for employees. These points of reasonableness are taken into consideration in tribunals every single day in other areas. For example, there is already a test in section 109 of the Equality Act that deals with a defence that employers have. They cannot be held liable for the actions of their employees if they have taken all reasonable steps to train their employees to avoid issues such as discrimination in the workplace.

[Mr Peter Bedford (Mid Leicestershire) (Con)]

The hon. Member mentions reasonable steps being taken by small businesses. Does he accept that an impact assessment on the consequences of bringing in this kind of legislation for these businesses should be conducted up front, so that businesses can at least understand how much time and money it will cost them and how much additional bureaucracy it will create for them?

[Alex McIntyre]

The Minister will answer about what the Government are doing on impact assessments, but the impact on small businesses is that they have to think a little bit about harassment in their industry. That will vary from business to business. Some small businesses are not public facing. The impact in a small café will be different from that in a small office, because of interactions with the general public, but I do not think it is unreasonable to ask a small café or a small bar to think about what they can put in place to deal with someone coming in and abusing or harassing staff.

Again, if somebody comes in and is abusive, these provisions will not necessarily be triggered, because the abuse and unwanted conduct has to be related to their protected characteristic. I know from closing up a number of Christmas parties when I worked in hospitality that people get a bit out of hand. That was not harassment under the Equality Act; it was because people were drunk and disorderly, which is a separate antisocial behaviour issue. There are different channels to deal with that. We are talking here about specific cases where there is abuse of people because of a protected characteristic. Those are very narrow circumstances where people have to think about what kind of policies they have in place.

The hon. Member for Chippenham spoke about how MPs would not operate in similar circumstances. We would not, for example, be alone with individuals in a private room. It is appropriate to have policies in place where we try to think about some of the circumstances.

This proposal does not use the word “requires”, and it does not say that every single step has to be taken—it mentions “all reasonable steps”. That is part of the tribunal, and there will be guidance to set out some examples of things that employers can do to take reasonable steps. It is really important that we do not create a two-tier system where we say that small employers do not have to deal with these issues, because actually it is often in small and medium-sized enterprises that some of this bad behaviour takes place.

I gave an example last week. I went to my boss and said, “I have just been groped by a midwife and was told, ‘I’m going to show you a thing or two’”. When I said that I was only 15 years old, my boss said I should enjoy it: “You are a bloke. Go back in there. Toughen up.” That is not acceptable. Actually, a reasonable step in those circumstances would be the manager saying, “Alex, why don’t you go and work in another part of the business for the rest of the week? Work on the bar this evening, rather than in the function.” It is about having a policy that deals with those kinds of incidents in the workplace. There are different steps that businesses can take.

Let me move on to the argument around free speech, which the Minister talked about at great length. I have set out how some of his arguments do not apply in this instance as this provision is about specific incidents of harassment under the Equality Act. A point that the shadow Minister might have raised that would perhaps have been more legitimate is cases where two protected characteristics are in play. A lot of the free speech cases that have made the press have engaged with two. For example, in some cases someone has expressed their religion, but that might be opposed to someone expressing their sexual orientation; or people have expressed protected views on gender-critical theory, but others have a protected characteristic of a different gender identity.

Those are difficult cases, which can go all the way to the Supreme Court. What is important to note, however—this is where the shadow Minister could have gone, to give us a stronger discussion—is that if we are at the stage where the Supreme Court has to give an opinion on these things, no tribunal in the land will say, “Well, an employer should reasonably have seen that and therefore taken reasonable steps to avoid such scenarios happening.” No, this is the exact example of where tribunals will take “reasonable steps” and say, “What is reasonable in these circumstances for these employers?”

Having represented the NHS for a number of years as an employment lawyer, I should point out that the A&E example that was given unfortunately did not make any sense. First, the NHS operates a zero-tolerance approach. In several instances, policies are in place where individuals can withdraw their support for someone if they are being abused in the workplace. Scenarios and planning are in place to make sure that everyone is looked after, without people being subjected to harassment in the workplace.

To sum up, “all reasonable steps” does not mean that an employer has a duty to stop something altogether. We have to be sensible. There is no point scaremongering so that individuals think this will have a broader impact, closing all comedy clubs and stopping people making jokes in the workplace. That is not the case. This is about specific examples of harassment under the Equality Act—that has to be unwanted conduct related to a protected characteristic, creating an offensive, hostile, degrading or humiliating environment. These are specific examples. It is important that we extend this to third parties, given all the evidence we have heard, and I encourage everyone in the Committee to support the legislation.

[Steve Darling (Torbay) (LD)]

It is a privilege to serve under you, Mr Stringer. Broadly, I welcome—[Interruption.]

--- Later in debate ---

[Anneliese Midgley]

It is a pleasure to serve under your chairmanship, Mr Stringer. About a year ago, one of my constituents in Knowsley was told that she needed IVF. She went to her employer to let them know that she was going to start treatment, and a few days later she was sacked. She was a few weeks short of having worked two years for her employer. She had previously passed probation and had no previous complaints or warnings on her work. Hon. Members will be happy to know that she did get pregnant and she had that baby a month ago, but while trying to get pregnant and in the early stages of her pregnancy she could not find another steady job. No employer wanted to take her on and being unemployed obviously caused immense stress.

My constituent did not qualify for maternity pay. She has worked hard all her life; she has studied and has a doctorate. She is now with a small baby on a statutory maternity allowance of £184 and is still not in a job. One in nine women are forced out of the labour market every year due to pregnancy and maternity discrimination. The two-year period in which someone can be dismissed was used unfairly against my constituent. The Bill will protect women across the UK, allowing them the right to a secure job and a family. I am sure we can all agree that the current situation for workers is unacceptable.

[Alex McIntyre]

I start by aligning myself with the very good arguments that my hon. Friend the Member for High Peak made from his professional experience. I saw many of the same circumstances in my professional career.

There are a couple of points that I want to add. To the extent that there are people who want to bring claims in bad faith, there are already avenues for them to do so. If they wanted to bring a claim against their employer vexatiously they could, as my hon. Friend said, bring a claim under the Equality Act or on the basis of whistleblowing. Part of the concern here is some of the—quite frankly—scaremongering going on about what some of these processes might entail. If the hon. Member for Bridgwater would like to intervene and say exactly which part of the capability process he thinks small businesses will be concerned by, and would be disproportionate for a small business to undertake, I will happily take that intervention.

Most employers—and nearly every MP in this room is a new employer, although there are some returning colleagues—get an idea pretty quickly whether someone is going to be a fit or not. If there are concerns about their performance, there is a very straightforward process that can be followed. It is not particularly onerous. There is often a disproportionate concern about what that process might look like. Part of the issue, as my hon. Friend the Member for High Peak said, is that, by not following a simple process, employers end up tying themselves in more knots and potentially discriminating against individuals because they have not followed what could have been a fair process from the start. That is the point that the Bill seeks to address.

The Bill will not prevent individuals from being dismissed for fair reasons, which include capability, performance and redundancy. We are saying that a fair process should be followed. We have already made provision for the fact that there will be a slightly different process, and rightly so, for individuals in their probation period. It is important that we recognise that and do not scaremonger, because that will put businesses off employing, when there is a simple procedure that they can follow.