Employment Rights Bill (Tenth sitting)

Debate between Alex McIntyre and Ashley Fox

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[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.

Employment Rights Bill (Fifth sitting)

Debate between Alex McIntyre and Ashley Fox

Committee stage
Tuesday 3rd December 2024 Public Bill Committees

[Alex McIntyre]

Well, the individual would be able to raise a grievance, but discrimination requires it to be related to a protected characteristic, and there is no protected characteristic saying that just because someone disagrees with a manager, he would be able to bring a claim under the Equality Act 2010 for discrimination. He might be able to raise a grievance about that, but that requires an employer to have a fair grievance process and to actually follow through. Is that individual, who is already on very low pay and struggling to pay his rent and feed his kids, going to take that grievance through a tribunal system that the previous Government allowed to really suffer? Eighteen to 24 months is the standard waiting time to get any form of justice, so I do not think it is appropriate to say that he would be able just to go to a tribunal. What he really needed was guaranteed hours and small businesses being prevented from abusing people by saying that they can continue to work 60 hours but not offering them a regular-hours contract.

My second point is on sexual harassment or harassment by third parties. When I was 15 years old, I worked at a Christmas party for midwives at that same hotel, and during that party I was sexually assaulted in the workplace. I was groped by the midwives and told that because I was only 15, they would be able to teach me a thing or two. When I approached my manager about it, he said I should enjoy that kind of attention because I was a man. I am really conscious that female colleagues suffered way worse than I did. Just because businesses are smaller, that does not mean that the impact on victims and people working there is any less.

However, the wording of the Bill is “all reasonable steps”, and the “reasonable” test is taken into account when tribunals consider such matters and what reasonable steps need to be taken by businesses. The size of a business is often something that tribunals will take into account when they look at what “all reasonable steps” would mean. In my example, there were reasonable steps that could have been taken, but I was told that I had to get back in there and carry on working with that party. Excluding small businesses would prevent them from having the duty to look after their employees when they are suffering harassment in the workplace.

To come back to the point made by the hon. Member for Mid Leicestershire about competing evenly, my hon. Friend the Member for Birmingham Northfield has already talked about some of the perverse outcomes that the amendment might lead to. Unscrupulous employers who want to get around the legislation in whatever way they can might end up setting up umbrella companies in order to do that if this amendment were passed. A two-tier employment system would be a barrier to growth for companies, because it would say, “If you grow your company and continue to do well, you are going to put additional regulation on to the company.” There would be a perverse incentive for businesses to grow to 499 employees and stop there.

[Sir Ashley Fox (Bridgwater) (Con)]

On the hon. Gentleman’s point about employers wanting to set up separate entities to keep below a limit, he will be aware that in the Budget the Chancellor increased the employment allowance, to protect small businesses from her otherwise devastating increase in national insurance charges, and there is no indication that the Exchequer is incapable of managing that. Equally, with small business rate relief, there is no indication that local councils cannot distinguish between employers that are setting up different business and those that are taking advantage of that. Why does the hon. Gentleman think that employers would be able to exploit what he describes as a loophole—but what we would say is there to protect small businesses—and yet the Government are perfectly happy to have similar allowances for national insurance and through rate relief?

[Alex McIntyre]

If we are looking at the numbers, I am glad that somebody on the Opposition Benches is finally acknowledging that we have massively increased employment allowance, taking many small businesses out of paying national insurance contributions altogether. It is nice to finally have some recognition of some of the good stuff this Government are doing for small businesses.

To return to the point, though, there is a big difference between having four employees, which would allow somebody to employ people on the national living wage, and having 500 employees. It would be much easier for a large business to exploit the kind of loopholes that are being suggested by reorganising itself into blocks of 499 employees than it would be for a business of a couple of thousand employees to be split into organisations of four employees or fewer, so I think that that is what is much more likely to happen.

I will not name names, but I have been in the trade for a long time, and whenever there is employment legislation, businesses will be considering how best to deal with it, and some are more aggressive than others. In this case, aggressive employers would potentially exploit that loophole, as my hon. Friend the Member for Birmingham Northfield suggested. We are creating a level playing field, which is an important part of this Bill. We heard in evidence last week that many employers are already doing so many of the good things in this Bill. This is a levelling of the playing field, to stop people undercutting good employers with what are, quite frankly, shoddy employment practices.

To sum up, I fully support the Bill, and I do not support the amendment. We should not create a two-tier employment system, where instances such as those that I and my colleagues suffered, like others working on zero-hours contracts in small and medium-sized enterprises, are allowed to go unchecked. We should continue to create a level playing field, as the Minister has suggested. It is important that we encourage all small and medium-sized enterprises to be good employers because, as the hon. Member for Chippenham said, staff retention in small and medium-sized enterprise is difficult. Being good employers—offering flexible working and ensuring that people have regular hours, if that is what they are working—can only benefit small and medium-sized enterprises, as they grow and expand their businesses.

--- Later in debate ---

[Sir Ashley Fox]

I want to talk about the reference period in relation to the hospitality and tourism industry, which is particularly important to my constituency of Bridgwater and to many other constituencies in the south-west of England. Clearly a lot of seasonal workers are employed, and although I would prefer there to be no reference period, the Government have a mandate to introduce one. Any reference period of less than 26 weeks will cause great difficulty for businesses that may start engaging people just before Easter and are looking for employment to end in September or October, according to their business need. The fact that that detail is left to secondary legislation causes concern to those businesses.

[Alex McIntyre]

Does the hon. Member not agree that most businesses in hospitality know their seasons very well? They come every year and they tend to operate on a relatively regular basis—that is how seasons work. As has been highlighted, businesses could use fixed-term contracts to ensure that they have appropriate staffing for the season. Those contracts would end at the appropriate time, negating the need for a longer reference period.

[Sir Ashley Fox]

I am grateful to the hon. Member for making that point, but in Burnham-on-Sea in my constituency there are many very small businesses, with perhaps two or three employees, that take on an extra person or two during the summer season. This summer has been particularly bad because there has been an awful lot of rain. Business needs change. The danger is that if there were a short reference period and we were fortunate enough to have a very hot and sunny April, May and June but a very wet July, August and September, businesses would be employing more staff because they had to, rather than because it was justified by the business conditions.

This is just not necessary. It is Government regulation for the sake of it, and it will make life more difficult for small business owners. Every time Government Members have risen to speak, they have declared that they are a member of one union or another, but very few have actually run a small business. I did run a small business. I was self-employed before I came to this place. It is challenging, because you are on your own: you take the decision whether to employ someone or not. Dare I say it, there are too few Government Members who have set up small businesses and who have actually employed people and experienced that challenge. That is part of why they do not understand how difficult this regulation would make life for some very small businesses.

Employment Rights Bill (Sixth sitting)

Debate between Alex McIntyre and Ashley Fox

Committee stage
Tuesday 3rd December 2024 Public Bill Committees

[Sir Ashley Fox (Bridgwater) (Con)]

It is a pleasure to serve under your chairmanship, Mr Stringer. I would like the Minister to deal with these points when he concludes, because I am concerned about the effect of an amendment that is as complicated as Government amendment 12 is on the small businesses that make up the bulk of business in my constituency. They will not have the benefit of an employment lawyer, such as the hon. Member for Gloucester, and they will not have an HR department. I ask the Minister to glance at the wording of the amendment and imagine that you do not spend your day job in a solicitor’s office, or a trade union office, or perhaps in the Palace of Westminster. You are wondering whether to employ someone and then you read that

“it is to be presumed, unless the contrary is shown, that it was not reasonable for the worker’s contract to have been entered into as a limited-term contract if the work done by the qualifying worker under the worker’s contract was of the same or a similar nature as the work done under another worker’s contract under which the qualifying worker worked for the employer—

(i) where the period in question is the relevant reference period, during that period;

(ii) where the period in question is the offer period, during that period or the relevant reference period;

(iii) where the period in question is the response period, during that period, the relevant reference period or the offer period.”

There are all sorts of technical legal terms used. The point is that you want this to apply to all small businesses, no matter how small—whether they have one, or two, or three employees. This point applies generally to the Bill. When the assessment of the Bill put the costs at £5 billion, the majority of which would fall on small businesses, I think it had exactly this sort of legal gobbledegook in mind. Very small businesses are going to have to deal with this, and they will probably not be able to understand it.

[Alex McIntyre]

I am grateful to the hon. Gentleman for touting out my services as a legal adviser, but I have committed to not taking any second jobs, and certainly none that involves legal services in the Cayman Islands. What I will say is that all of us here, as individuals, are governed by laws in our day-to-day lives. I doubt that many Members will be familiar with, on a detailed basis, the provisions of the Consumer Rights Act 2015, for example, but there are guidance documents and the Money Saving Expert is fantastic. If you ever have an issue with one of your financial products, there is always a guide that can be provided. I am sure that alongside the Bill there will be updated guidance—from ACAS, for example. Does the hon. Member for Bridgwater agree that although small businesses may not be able to take legal advice, there will be guidance documents? They are not expected to read the whole Bill line by line. There will be guidance, on websites such as that of ACAS, that is readily available to all employers, in which they will be able to get an explanation of some of these provisions.