Employment Rights Bill

Baroness Fox of Buckley Excerpts

Committee stage
Tuesday 10th June 2025 Lords Chamber

[Lord Jackson of Peterborough (Con)]

My Lords, I have tabled a number of probing amendments to Clause 61. As I alluded to earlier, I take the view that the amendments are not unhelpful but should be seen through the prism of fairness, balance, proportionality and reasonableness. There is the possibility that, as drafted, it could plausibly be argued that the Bill’s balance is very much in favour of not just employees and union members but unions themselves as corporate bodies and organisations, rather than employers.

We are on our eighth day in Committee, and we have discussed on a number of occasions the less than benign economic circumstances faced by many businesses, including small businesses. The situation is deteriorating. Pretty much every week, there is worse economic data than one would hope for, particularly for the jobs market and the levels of employment and potential unemployment.

Therefore, anything that the Government do—and certainly this Bill represents a very far-reaching change to the employment relations regime—to make things more difficult for small and medium-sized enterprises, and businesses generally, to employ people should be a cause for concern for Members of your Lordships’ House.

I will briefly go through the amendments. Amendment 224 would qualify the right to time off for union officials with a reasonableness test. I can see that most relationships between employers and union representatives are positive, based on mutual respect and it was ever thus. Therefore, this will not be a problem for the vast bulk of employers. However, when I was a local councillor, I had to rely on the Employment Rights Act 1996 to enforce my right to attend a number of meetings held during the day—in my case, at Ealing Borough Council, although I was an alternate member of the London Fire and Civil Defence Authority, which met across the road at County Hall. As a young working man, it was sometimes very difficult to get time off, and I understand that we went in the right direction in guaranteeing the right to time off. Equally, reasonableness is key, and this amendment speaks to that.

Amendment 225 would qualify the right to the provision of facilities for union officials with an appropriateness test. Again, this reflects a real-world experience of the discrete circumstances affecting a business at the time that the request is made. It might not be appropriate for a business to provide a room, audio-visual facilities or materials. This would be easier for a big company, which has a bespoke budget for HR training et cetera, than for a much smaller commercial entity, which might struggle to provide a similar level of facilities for trade union officials.

Amendments 226, 227 and 228 would reverse the burden of proof in disputes over the reasonableness of requested time off for union activities, and therefore there would be more of a balance for making the case for facilities being provided. I do not want to delay the Committee at this relatively late juncture; the amendments stand on their own merits.

Amendment 229 would qualify the right to time off for union learning representatives, again with a reasonableness test. In past debates, I mentioned my admiration for the Workers’ Educational Association and the great work it did in empowering working people to improve their life and their life chances, which is very important. However, a reasonableness test makes sure that it can be accommodated in a way which will not undermine the commercial viability of a business, while at the same time assisting individual workers and their representatives to deliver education and training outcomes.

Amendment 230 would qualify the right to the provision of facilities for union learning representatives, again with an appropriateness test.

Amendments 231, 232 and 233 would reverse the burden of proof in disputes over the reasonableness of requested time off for union learning representatives. It would be for the union representatives to explain why their request for facilities and learning resources was reasonable rather than the other way round.

These are probing amendments. I know I have said it before, but it bears repetition that these are not wrecking amendments. They do not alter substantially the kernel of the Bill, which is—and I take Ministers on their word—to improve the working lives of people, as in the report, Make Work Pay. I accept that premise and that Ministers sincerely want to do that, but these amendments are an attempt to rebalance between the workforce, their representatives and employers in a fair and equitable way. On that basis, I beg to move Amendment 224.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I oppose the question that Clause 62 should stand part of the Bill, with the intention of removing provisions which compel employers to allow time off for trade union equality reps. To note, I am not opposed to trade union facilities time per se, and I am actually not objecting to Clause 61 in relation to learning reps.

My concern is specifically on the nature of equality as has been interpreted by the trade unions in recent years, the divisive nature of their adherence to identity politics, for example, and the ideologically contentious implementation of prescriptive policies, often setting one group of workers against another. Trade union priorities under the auspices of fighting for equality have been skewed, to say the least.

The wording in this unfeasibly long clause states at subsection (12)(b)(i) that:

“‘equality’, in relation to a workplace, means … the elimination of discrimination, harassment and victimisation … in accordance with the Equality Act 2010”.


You would think I would have nothing to disagree with there, yet, time after time in the last few years, what we have actually seen is the discrimination and victimisation of women workers that has been at best ignored and too often actively abetted by trade unions’ own version of inclusive equality. They have in fact ignored the Equality Act.

Let me use as an example an incident that happened in May 2024 at Epsom and St Helier University Hospital. A black female nurse, Jennifer Melle, indirectly called a six-foot transgender patient “Mister” while on the phone to a consultant. The patient, whom I will call Mr X, was having treatment on the ward, having been transferred from a male prison. He was chained to two guards. Mr X is serving a sentence for luring young boys into sex acts on the internet while pretending to be a woman. For Ms Melle’s alleged misgendering, Mr X, the convict, violently lunged at her, screaming, “Do not call me Mister, I’m an effing woman”, and then called her the N-word, screaming it at her. He of course used the full words in those instances, and he screamed that word at her three times.

After her shift, Jennifer went home shaken but resilient about the reality of unpleasant abuse at work. She was then contacted by her hospital trust. You might think it was a welfare check—but no. There was no mention of support after the racist attack. Instead, she was issued with a written warning, and the trust reported her to the Nursing and Midwifery Council to investigate her fitness to practise, because she posed a risk to the public, it was said, and the reputation of the NHS for not using the patient’s preferred gender identity. Only when Jennifer went public and the story hit the media did the trust say it would investigate the racist abuse. But by then, it had suspended Jennifer for telling her story. Then, they moved her to another hospital, demoted her to a lower grade, and she lost pay et cetera.

Now, I would have assumed that this shocking story would be a huge equality-at-work story for the trade union movement to take up: an ethnic minority female, a front-line health worker, a victim of explicit racist harassment and male violence, all over the papers, and then gross discriminatory employer behaviour. But no, not a dicky bird: a deafening silence in the nursing unions and the TUC. Maybe Nurse Jennifer was, as an open evangelical Christian, rather than a trade unionist, the wrong kind of victim.

Recently, we heard that another nurse, Sandie Peggie, a Royal College of Nursing member for 30 years, has been forced to sue her union for its failure to support her or provide legal assistance when she was suspended by NHS Fife. Her crime was that she challenged the presence of Dr Beth Upton, a biological man, in the women-only changing rooms at Victoria Hospital, Kirkcaldy. That Nurse Peggie’s legal action is necessary should shame the trade union movement. As Mrs Peggie’s solicitor, Margaret Gribbon, explained, her client expected the union to

“exercise its industrial muscle to challenge the decision which was adversely impacting her and other female union members”.

She alleged that she

“spoke to the union about the issue of single-sex spaces in February last year”.

In relation to this amendment, how can we mandate employers to provide generous facility time for trade union equalities work with such a risible attitude to the real-life attacks on equality at work, as evidenced? When Nurse Peggie is forced to take legal action to get justice from her own union, I am not sure I want any more union equality officers. Susan Smith, of the For Women Scotland organisation that brought the successful Supreme Court action, notes:

“We imagine this is likely to be first of many such cases. Sadly, it seems that only financial penalties will persuade the unions to step up, do their job, and represent women in the workplace”.

--- Later in debate ---

[Lord in Waiting/Government Whip (Lord Katz) (Lab)]

My Lords, I thank the noble Lords, Lord Jackson of Peterborough and Lord Sharpe of Epsom, for their amendments relating to the provision of facilities to trade union officials and representatives, and the noble Lord, Lord Hunt of Wirral, for speaking to them. I also thank the noble Baroness, Lady Fox of Buckley, for initiating debate on Clause 62, to which I will also speak.

In Amendments 224 to 233, tabled by the noble Lord, Lord Jackson of Peterborough, he seeks to amend Clause 61 to maintain, as he argues, a reasonable balance of obligations and responsibilities between employers and employees. Like the noble Lord, Lord Goddard, I take the amendments at face value: they are probing and not wrecking, and the noble Lord is trying to understand the appropriate balance. I say to the noble Lord, Lord Jackson of Peterborough, that the clause already seeks a reasonable balance of obligations and responsibilities between employers and employee representatives. The paid time off that trade union representatives receive is often insufficient to fulfil all their trade union duties. Many union representatives use significant amounts of their own time to support workplace relations. Indeed, in some sectors, in some companies, in some firms, their trade union activity is carried out very much on a voluntary basis rather than it being about people having full-time release and doing nothing towards the organisation apart from conducting trade union duties.

The Government want to rebalance obligations and responsibilities by ensuring that union workplace representatives are able to take sufficient paid facility time and have sufficient access to facilities to enable them to fulfil their union representative duties. While the clause grants trade union representatives the right to facility time and accommodation and other facilities from their employers, it does so by having regard to a relevant code of practice issued by ACAS. The ACAS guidance will help employers to implement these measures and will be updated in partnership and through consultation with both employers and trade unions. It will therefore help to ensure that a balance of obligations and responsibilities is secured, and ACAS is a very appropriate and worthy organisation to undertake that role.

Greater facility time will lead to improved work representation and better industrial relations by giving trade unions and workplace representatives the freedom to organise, represent and negotiate on behalf of their workers. This will result in more mature industrial relations and increased co-operation between employers and unionised workers, leading to beneficial outcomes for businesses and the economy. This is a framework to promote more co-operation and understanding at work, not more scope for conflict.

Amendments 234 to 236 concerning Clause 62, tabled by the noble Lord, Lord Sharpe of Epsom, require that a performance condition must be met before facility time for equality representatives is provided by public sector employers. This would make the provision of facility time contingent on the employer already meeting certain performance standards, although the amendment is not specific about what those standards are.

We fully recognise the importance of strong public sector performance and accountability. However, linking facility time for equality representatives to performance conditions is both disproportionate and counterproductive, as it would create a barrier to improvement and creating stronger industrial relations. These amendments would require the Secretary of State to certify that a public sector employer is meeting relevant statutory performance standards before facility time can be granted. Together, they would pose heavy administrative burdens on both employers, who would need to apply and provide evidence, and central government, which would have to assess compliance for every employer.

I hesitate in suggesting this, but in speaking to other amendments on the Bill in Committee, those on the Benches opposite have been very quick to point out the administrative burdens that they assume are being placed on employers across all sectors by various measures in the Bill. The kind of burdens that this amendment would place on the public sector would not be tolerated by them on the private sector. More fundamentally, they would risk delaying facility time precisely for those organisations most in need of support and undermine the very purpose of equality representatives. Furthermore, a Secretary of State-led certification process would create legal uncertainty and potential disputes. It could also harm industrial relations in the public sector.

Finally, I turn to the opposition of the noble Baroness, Lady Fox of Buckley, to Clause 62. This clause inserts new Section 168B into the Trade Union and Labour Relations (Consolidation) Act 1992 and requires that an employer must permit an employee who is

“a member of an independent trade union recognised by the employer, and an equality representative of the trade union, to take time off during the employee’s working hours”

for specified purposes. However, this applies only if

“the trade union has given the employer notice in writing that the employee is an equality representative of the union”,

or will be undergoing or has completed training to become an equality representative. Sufficient training is that which is sufficient for fulfilling the purposes of an equality representative role, having regard to a relevant code of practice issued by ACAS or the Secretary of State.

Clause 62 also requires that the employer must permit the employee to take paid time off during working hours to undergo training relevant to their role as an equality representative and, where requested, provide the employee with accommodation and other facilities to enable them to fulfil their role, having regard to the relevant code of practice issued by ACAS. Should an employer fail to permit the employee to take time off or to provide the employee with facilities as required, the employee may present a complaint to an employment tribunal, at which it will be for the employer to show that the amount of time off that the employee proposed was not reasonable. So far on those grounds, it is as for any other recognised rep status.

Trade unions have long fought for equality: from Grunwick to the Bristol bus boycott, to campaigning on Section 28, to recently standing up for retail workers—mostly female—who have to cope with violence in the workplace, particularly from customers. It is important to recognise, as, it is fair to say, the noble Baroness, Lady Fox of Buckley, did in her remarks, that equality reps have a key role in raising awareness and promoting equal rights for members, as well as in developing collective policies and practices that enable organisations to realise all the benefits of being an equal opportunities employer.

The noble Baroness, Lady Fox, gave some specific examples. I join with the noble Lord, Lord Hunt of Wirral, in saying that the cases the noble Baroness recounted, of Nurses Jennifer and Peggie, were horrific experiences you would not want to see anyone encounter. However, I am unsure that using that single brush to tar the feathers of the whole equality reps proposal is proportionate. There may be some correlation, but I am not sure that there is causation.

Clause 62 recognises a trade union equality representative as a person appointed or elected in accordance with the trade union rules, in a manner consistent with the Equality Act 2010. I contend that equality reps have a key role to play in raising awareness and promoting equal rights for all members, as well as in developing collective policies and practices that will enable organisations to realise all the benefits of being an equal opportunities employer. It is pure speculation but, had equality reps been in place in local authorities in earlier decades, and had there been more awareness of inequality in women’s pay, those local authorities facing significant equal pay claims today might not be facing them. Who can say?

I am not sure how rhetorical the questions were from the noble Baroness, Lady Fox, on the sort of equality. For the purpose of the clause, it is defined in the Equality Act 2010.

Turning to Amendment 237—

[Baroness Fox of Buckley (Non-Afl)]

My Lords, as the Minister asked a direct question, I might as well answer it now. I gave individual examples. I am sorry if the personalised examples made it sound as though they are one-off cases. I was simply trying to bring alive trends, not say, “Nurse Peggie”. There are loads of them, but I only had 10 minutes. They are trends, but I have brought them alive, I hope.

I ask the Minister to reflect on two things. As the Equality Act 2010 defines equality, I used the example that many trade unions are saying that they will refuse to acknowledge the Supreme Court clarification of what equality means under that very Act. They are going to defy it in the name of equality—trans inclusion and so on. How do you square that circle?

Secondly, the Minister read out the points about training. In part, I was challenging whether the Government care what the content of that training is. My argument was that the training being used in the name of equality is divisive and may not be helpful in the workplace, and is in fact likely to turn worker against worker, rather than the reverse. Do the Government consider any of that, or do they just hand it over to the reps?

[Lord Katz (Lab)]

I will try to address those points now. Of course we care whether reps, when undertaking any role—whether it is health and safety, learning, or workplace negotiation—comply with the law and are trained in a suitable manner. That does not mean we should necessarily be scrutinising every single thing they do, because one would not expect that in the normal way of things.

I certainly did not mean to belittle the examples the noble Baroness gave, and I am sure they are not the only ones. But at the same time, one cannot make the generalisation that this is endemic across all workplaces where there is union representation. I will also speculate —as we are sort of speculating here—that the engagement and involvement of equality reps might prevent the kind of activity the noble Baroness outlined in the case of Nurses Sandie Peggie and Jennifer. That is counterfactual speculation; one cannot say either way, but it is worth positing if we are serious about discussing this.

I should add, without wanting to stray too far from my brief and, indeed, land myself in some kind of legal hot water, that the Government’s expectation is that all organisations will comply with equalities law in every manner while carrying out their duties. Whatever equality law clearly specifies, we expect all organisations, employers and trade unions to follow that.

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[Baroness Jones of Moulsecoomb (GP)]

I am getting snarky comments from the Tory Front Bench. I object strongly to that.

I am speaking in support of Amendment 238, even though the noble Lord, Lord Hendy, needs no support at all. This would establish

“a clear positive right to strike (and take action short of a strike)”.

As the noble Lord pointed out at the start of his introduction, from the early 1980s onwards, we have had one set of anti-union laws after another, and there are now decades of them. Conservative Governments have introduced anti-union laws, and Labour Governments have mostly kept them. The result has been declining union membership and that the power of working people has been taken away. The UK has gone from being a country where income inequality was not that bad, and was even falling in the 1970s, to one where inequality has been rising sharply ever since. That means more billionaires and more money for the top 1% of earners, while more people exist on low incomes and live their entire lives owning nothing but debt.

Our economy has stopped working in the interests of the majority of people. Working people have less power but businesses and capital have more. That is one reason why in this country millions of pounds now disappear to offshore tax havens. The right of working people to withdraw their labour is a fundamental right, but it has been eroded. This amendment on the right to strike is another little step towards restoring the balance of power in the workplace. Without these little steps, which enable working people to stand up for themselves, this country will continue to get worse for the majority of people who do the real work.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I want briefly to commend the noble Lord, Lord Hendy, for putting this amendment forward. I have a lot of sympathy with it. The noble Baroness, Lady Jones of Moulsecoomb, has explained some of my reasons for supporting it.

I just wanted to note that it is very tempting when rights are being taken away to want to consolidate them via the law and constitutionally. I felt it myself in relation to civil liberties, which I think are under attack: the right to protest and in particular free speech. I keep wishing there was a First Amendment, because then it would be there and they would not be able to attack it.

However—this a good faith question—when I heard the noble Lord, Lord Hendy, justify it in relation to international treaties, ECHR, the Council of Europe and so on, I started to worry that maybe this would become one of those treaties where it would be, “You can’t touch this” and you would end up treating it technocratically, as it were. Rather than it being fighting for the right to strike, it would be fighting for the principle of the right to strike with ordinary workers, rather than simply referring to defending it in the law. So can the noble Lord, Lord Hendy, even though he does not stand a chance of getting it through, reassure me that this is not just an attempt at ring-fencing a right, but then neglecting to fight for it in real life? I commend him and the noble Baroness, Lady Jones, for raising this, because I really do feel that rights need to be protected under this Government as much as any other, I have to say.

[Lord Goddard of Stockport (LD)]

My Lords, these amendments, proposed by the noble Lords, Lord Hendy and Lord Woodley, are I think as people have outlined. I have been on the wrong end of that legislation on a number of events—official strikes, unofficial strikes and secondary picketing. As a shop steward you are responsible for taking those actions for a company; there are consequences and I have suffered consequences from that.

It is not that I agree with the rights being taken away, but I think times have changed and unions have moved on now. The right of anybody to remove their labour, if they are pushed to it, should be a universal right, but it should be used very sparingly and in very special circumstances. It is all very well rushing to legislation and quoting the European Court, but we live in the real world and when things happen to people at work and people are treated badly, sometimes we have not got time to go and contact the KC and get case law. We just do the things that we used to do and take that action straight away. Sometimes that resolves the matter fairly quickly, because a reasonable employer will see the action you have taken as a direct result of another manager doing something that was not in agreement. So I get the thrust of this.

I have had notes typed and I have been writing my own notes, but I think the top and bottom for me is the amendment is seeking to restore a trade union’s flexibility in choosing which members to ballot and removing some procedural requirements and obligations to notify employees in advance of ballots. I think that time has gone as well.

Reinstating rights for prison officers, the group currently subject to significant legal limitations, is one I would like to slightly explore. The intent behind these amendments is to strengthen trade union rights and promote collective bargaining. The concern is potentially around impact, industrial relations and public safety, especially with the actions of prison officers. I say to the noble Lord, Lord Hendy, and to the Government that the way to protect prison officers is not to enshrine the right to strike but to remove the reasons why they would want to strike. That really is about improving the Victorian conditions that we have in 2025 prison systems, where people go into prison and come out worse criminals or nine out of 10 as drug addicts or whatever.

Governments, instead of trying to give extra law for prison officers, should be looking at the root cause. I know there is a prison plan being built and we are trying to get more education into prisons—if you want to speak to the noble Lord, Lord Timpson, he can give you chapter and verse on that, as I have listened to him doing. I hear why it is being done, I understand why it is being done and I know that it is not got a hope in somewhere else of getting through. But I thank the noble Lord for bringing it forward, because sometimes it is good to realise that things that we used to do are perhaps today not even politically correct to do. Human rights and the rights of people who go every day to work, to earn a living and support their family, need airing and need protecting. I know this is a probing amendment, but I thank the noble Lord for bringing it because it is interesting. Now and again it is good to be reminded of how it used to be and how it can be now.