Employment Rights Bill

Baroness Bousted Excerpts

Committee stage
Thursday 8th May 2025 Lords Chamber

The idea that was mentioned in earlier groups by the noble Lord, Lord Leong, that this can all be sorted out by the tribunal down the line, is not good enough, for two reasons. First, the employment tribunals service is struggling under a massive backlog as it is. Secondly—this is perhaps an even more fundamental point—the employment tribunals are not a court of record. One tribunal may make a decision that a certain flexible working request was reasonably refused, but that is not going to be a binding precedent on the interpretation of those provisions. It is simply another first-instance decision that is not from a court of record and not capable of reliance upon in a subsequent tribunal. It would become a precedent only if it were appealed, it went to the Employment Appeal Tribunal and the Employment Appeal Tribunal made a ruling upon it. I suggest that it will not be economic for many employers to appeal those sorts of cases. I therefore very strongly support the amendments advanced by my noble friends.

[Baroness Bousted (Lab)]

My Lords, Amendment 65A refers to

“any other sector where the core duties require in-person collaboration, physical presence, or real-time operational responsiveness”.

That could well be argued to be teaching, of course.

As my noble friend Lord Katz said, flexible working is not just working at home—it has a whole range of other alternatives and ways of doing it. The lack of the ability to work flexibly has real consequences for the delivery of a profession that I know a lot about, which is teaching. Some 76% of teachers are women. The biggest proportion of teachers who leave the profession every year are women in their 30s.

I declare an interest in that I am chairing the commission on teaching. We have commissioned some independent research on this issue from the Key foundation, which finds that women in their 30s with children leave teaching in huge numbers. It was 9,000 last year, the biggest number on record of women leaving the profession. They leave when they have children because their requests to work part-time or flexibly are denied.

The noble Lord, Lord Sharpe of Epsom, asked whether employers were just routinely refusing flexible working. Well, in education, yes, they are. The rate of flexible working among graduate professions is about 46%. In teaching, 2% of teachers last year asked whether they could work flexibly. Those requests are routinely denied by employers who have a very poor understanding of what flexible working involves and, frankly, by employers who refuse flexible working because of a one-size-fits-all policy and then find that the teachers who are so precious to them leave the profession.

Last week I spoke to a young teacher with two children who asked whether she could have two registration periods off a week—she would make up the time in other ways—because her youngest child, who is three, was finding it difficult to settle at nursery. That was refused and she has now given in her resignation.

Work on this has been done by the Key foundation and by the Missing Mothers report from the New Britain Project, authored by Anna McShane. When she looked at the reasons for women leaving the profession in their 30s, she found that overwhelmingly they leave because they do not feel that they can manage the demands of the job full time and the demands of bringing up a family. The main recommendation in that report was that flexible working should be supported and encouraged. So, if an amendment that refers to

“any other sector where the core duties require in-person collaboration, physical presence, or real-time operational responsiveness”

were to be included in the Bill, it would be used up and down the land by education employers as a “get out of jail free card” for flexible working requests. As the Minister said, that means all sorts of things, including the right to flexible working—and the DfE defines flexible working as flexible and part-time.

We have to get out of the idea that there are whole swathes of the economy—education being the one I know most about—where flexible working is just not possible. We have to start thinking differently about this. If this amendment were agreed, it would make doubly difficult the right to request and to engage in flexible working, which would have such an effect on retaining teachers in the profession and on raising educational standards in our schools. So I think it is a very poor amendment.

[Baroness Neville-Rolfe (Con)]

My Lords, I will ask one simple question: what is flexible working? Perhaps the Minister could reply to that. I have a lot of sympathy with what has been said; I have always encouraged people who want to work part time, dual workers and so on. I have worked at a senior level in business and in government, both as a civil servant and as a Minister, and the truth is that you have to show some flexibility when things are difficult. That is what my noble friends are trying to capture in the amendment they have put forward.

We need to try to find a way through on this, to encourage flexible working. However, we also have to consider the needs of the employer. That will be true in the business sector—which I know—in the enterprise sector, in the charities sector and of course in government. It is a very important debate and any light that can be thrown on it by either the Minister or my noble friend Lord Murray, with his legal hat on, would be very helpful.

--- Later in debate ---

[Baroness Bousted (Lab)]

I am chairing a commission that will be very clear about what it means and how it can be employed in schools. I hope that will enlighten lots of people.

[Lord Sharpe of Epsom (Con)]

I look forward to being enlightened.

The noble Lord, Lord Fox, again made some very good points about the need to describe the job; I accept that that was an imperfect way of tabling that amendment. However, I leap into the defence of my noble friend Lord Murray of Blidworth from his attacks by the Fox. As I heard it, my noble friend was not saying that employment tribunals are no good; he was saying that there is a backlog, that they are probably underresourced and underfunded and that, because of their structural nature, they do not necessarily resolve things. An increasing reliance on them to resolve things will not necessarily have the desired effect. That is an incredibly important point that we should return to in the discussion that the Minister offered the Committee because, as I said in my last summary, we are placing an increasing reliance on employment tribunals to resolve an awful lot of the unanswered questions that are being discussed as a result of the Bill. For things not to be resolved even after they have got to an employment tribunal, after a long delay, seems a little short-sighted.

For now, as I say, I am somewhat reassured on Amendment 65, and I am grateful to the Minister for his answers. We should return to the idea of Amendment 67 and a much broader impact assessment, but for now I am content to withdraw Amendment 65.