Employment Rights Bill (Tenth sitting)

Debate between Alex McIntyre and Peter Bedford

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[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.

Employment Rights Bill (Fifth sitting)

Debate between Alex McIntyre and Peter Bedford

Committee stage
Tuesday 3rd December 2024 Public Bill Committees

[Alex McIntyre]

My experience in business goes way back. My parents ran a small business and, although I would not say I was a worker at it, I helped out from the age of nine. I got my first job at a small business when I was 12, and I worked in the hospitality trade throughout my school and university years, all at small and medium-sized enterprises. I spoke last week about the fact that I was on a zero-hours contract for the most part while I was there. I then became an employment lawyer advising businesses, from start-ups to FTSE 100 companies and global conglomerates. So I have some experience in these matters, and I am very grateful to be on the Committee.

Let me go back to my experience on a zero-hours contract. We are talking about amendments that would take out SMEs from many of these provisions, and I want to draw on two of my experiences and say why I think this issue is important. I mentioned the first last week: when I was on a zero-hours contract at the hotel that I worked at in my later teens, everybody in that business was on a zero-hours contract. As a 15-year-old, I was quite happy to be on a zero-hours contract. I had to balance it with playing rugby and my studies, but in the summer I could flex up and work longer hours. However, for many of my colleagues, that was their full-time job; it was the job that paid their rent or mortgage—if they had been lucky enough to buy a house—looked after their kids and provided the heating each winter. But when it came to it, it was open to abuse, and the manager I had would vary hours based not on demand, but on whether she liked the individual or not.

I remember vividly that one week a colleague refused—quite rightly, I would say—to take the manager’s personal shopping up to her fourth-floor flat, because he was really busy behind the bar; he was the only barman on shift. He usually worked between 50 and 60 hours a week; for the next month, he was given five hours a week. He had two children, and rent to pay. I just do not agree with the amendment suggesting that that is fine and that that abuse of someone’s rights could continue indefinitely.

[Mr Bedford]

The example the hon. Gentleman has just given would be covered anyway by employment law. If an individual is being discriminated against, they could take that to a tribunal under current employment law. The amendment would not in any way dilute the rights that currently exist in that respect.

[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.

Employment Rights Bill (Third sitting)

Debate between Alex McIntyre and Peter Bedford

Committee stage
Thursday 28th November 2024 Public Bill Committees

[Alex McIntyre (Gloucester) (Lab)]

Q My questions are for Claire. I should declare that I am a Co-op member and a member of the Co-operative party. You mention having a positive relationship with your unions. I was an employment lawyer before I came to this place, advising businesses up and down the country. In terms of your view on the provisions around union recognition in this Bill, what do you think the benefits to business are of having a positive relationship with the trade unions that represent your employees?

You also mention an increase in employment tribunal claims. We would hope that most employers would follow the new legislation and therefore avoid those claims, but we both know that there are a small number of bad-faith actors who will always try to find a claim. There are already claims that individuals can bring from day one, but do you think you will see a big increase in bad-faith claims, or do you think they are already there in the system?

Claire Costello: I will take the point about unions first. The strong relationship we have with the union means that we can work in a very collaboratively challenging way together—do not get me wrong; it is not without having difficult conversations, but that is the point. A healthy relationship is like a healthy marriage. You do not just give up on each other. You have those difficult conversations with each other and face into issues and look for solutions. The key for me is looking for solutions. Having very progressive relationships means that you can talk about the direction of the business and what you need to do, and work together on finding solutions. That is what we have found with our relationships. It is not always easy, but it is absolutely the better way of going forward.

In terms of employment tribunals, I think you are right. The reason we think it would go up is that, as with all things, when something becomes more available, by virtue of that fact there will be more people who want to use it. We do not have the absolute evidence to say it, because it is not there today, but the reality will be that if you can take their employer to court, why would you not? There will be more individuals who would wish to do so. We have said before that it is about having clarity and making sure that we understand what reasonable looks like and what the steps are that would be expected. It is more about the onus of extra work that this will bring to each of the areas. As I said, we follow all of the processes very strictly, and we try to make sure that we have a very fair and open conversation with all of our colleagues. The challenge will always be that you cannot make everybody happy all the time.

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

Q Ms Costello, you mentioned some statistics on those leaving your organisation quite early on after starting. Could you reflect on the impact on productivity of the day one rights and probationary period?

Claire Costello: Gosh, that is a good question. I do not see why it would make a difference to productivity itself, because at the end of the day you are still bringing someone new into the organisation. I think it would be a longer-term impact. If we did start to see more people raising a grievance because they want to leave or because we have said, “Actually, this is not the right role for you.”, it would be the time perspective that would be drawn on. That is more your line managers, store managers and leaders around the organisation that would draw on to that resource. I kind of see it as more of a longer play in terms of productivity.