Worker Protection (Amendment of Equality Act 2010) Bill

Baroness Noakes Excerpts

Committee stage
Friday 14th July 2023 Lords Chamber

[Lord Hannan of Kingsclere (Con)]

My Lords, I rise to oppose Clause 1 standing part of this Bill. It is the first time I have ever done anything like this, so I hope noble Lords will bear with me if I get anything wrong. My impression until now has been that when people oppose these clauses, they do so in a theatrical or perfunctory way. In other words, they declare their opposition as a prelude to them bellyaching about the various things they do not like in it, but in the expectation that the clause will eventually be included. But not on this occasion—as a result of constructive talks among interested parties on all sides, I rise in the expectation that Clause 1 will not be part of the final legislation.

In that spirit, I will take this opportunity to thank noble Lords on all sides for the generous and constructive way in which they have approached this, particularly the noble Baroness, Lady Burt of Solihull, colleagues on her Benches and on all Benches, and not least my noble friend Lady Scott of Bybrook, who with great delicacy and aplomb has had to find a solution that all sides can live with. I assure noble Lords on the Benches opposite that those of us who had problems with this Bill have moved considerably. I do not intend to rehearse all the arguments that we heard at Second Reading from my noble friends Lord Leicester, Lord Moylan, Lord Strathcarron, and others. Suffice to say that this is, in every sense, a solution which all sides have moved towards.

Speaking for myself, I would much rather have a world in which we had something closer to free contract, whereby if you want to employ me and I want to work for you, and we are both happy with the terms and conditions, the Government should not come between us and declare this or that clause of it to be illegal—but we are a long way away from that. So let me simply take this opportunity to thank all of those who have been involved. I look forward to hearing from noble Lords on all sides, particularly from the noble Baroness, Lady Burt, and from my noble friend the Minister. I beg to oppose this Clause.

[Baroness Noakes (Con)]

My Lords, I echo all that my noble friend Lord Hannan said, and I am delighted that we have reached agreement and a way forward on the Bill. I will just add a few words on why I added my name to opposing Clause 1 standing part of the Bill. This is not simply a free speech issue. Clause 1 amends Section 40 of the Equality Act 2010. A new subsection (1B) defines a third party as

“a person other than … A, or …an employee of A’s”,

which noble Lords will recognise as a double possessive. It has both “of” and “A’s”. While a double possessive can occasionally be used to avoid ambiguity, there is no ambiguity in Clause 1. Fowler’s Modern English Usage, which is my Bible, has it listed as a sturdy but indefensible “freak of idiom”. My own view is that when we legislate, we should use the best possible version of the King’s English that we can find. I tried to table a specific amendment on this, but the usually very helpful Bill Office refused to let me do so, even though there is no direct prohibition in the Companion. I have no idea how one is supposed to correct grammatical errors or poor use of language other than by an amendment—I shall have to fight that another day.

The wording is also found in the Equality Act 2010, in Sections 39 and 40, so I can celebrate that by removing Clause 1 from this Bill, the Bill has been saved from repeating that poor use of the English language. But the 2010 Act remains intact with its double possessives, and I hope that my small intervention today might someday lead to its rectification.

[The Earl of Leicester (Con)]

My Lords, I declare my interests as set out in the register. I employ over 350 people and in 30 years have been taken to an employment tribunal only twice. On both occasions the tribunal found in my favour. I hope that noble Lords see that as an indication of good management and of taking a responsible and caring attitude towards the workforce. Of course, there are bad employers, but I suggest that most employers care for and nurture their workforce, understanding that a happy and well-motivated team is a business’s greatest asset and will ensure better outcomes for the company.

It is for that very general reason, and for the reasons announced at Second Reading by my noble friends Lord Hannan, Lord Strathcarron and Lord Moylan, which do not need repeating now, that I oppose Clause 1 standing part of this Bill. I sincerely believe that it should be removed. Furthermore, I understand that the noble Baroness, Lady Burt of Solihull, who is the Bill’s sponsor in your Lordships’ House, agrees that Clause 1 can be removed.

I thank the noble Baroness, and my noble friend the Minister, for our productive discussions on the Bill in recent weeks. While I hold reservations on the need for some of the specific measures and burdens that they place on employers, I trust that the amendments proposed today are a pragmatic way forward that allows the Bill to progress. The Bill, if amended, would retain the core purpose and send a clear signal that harassment is not acceptable in the workplace. It is right that employers take reasonable steps to prevent this, while balancing against the burdens on the business that the Bill, as originally drafted, could have imposed.

I have one point which I would be most grateful for clarification on, pertaining to Clause 2 and sexual harassment by a third party. If a company sends an employee away on a training course, having of course undertaken due diligence on said training provider, but while attending the course the employee is sexually harassed by someone from that company or another course attendee, in this example is the employee allowed to sue their employer—since the employer has very little control over what happens off their premises? I hope that my noble friend the Minister can clarify this.

During the progress of this Bill, I have learned a great deal about the consensual way in which this House undertakes its politics. Negotiations have led to sensible compromises, and I am particularly grateful to my noble friend Lady Noakes and the noble Baroness, Lady Burt of Solihull, for their friendly and helpful guidance. I look forward the words of the noble Baroness, Lady Burt. I also thank the Minister for her ongoing engagement and steadfast resolve in seeking a way forward that the House can agree on. I hope that she can confirm that the Government are open to the proposed amendments.

--- Later in debate ---

Moved by

[Baroness Noakes]

1: Clause 2, page 2, line 27, leave out “all”

[Baroness Noakes (Con)]

My Lords, the debate on Clause 1 stand part has already touched on the substance my amendment to Clause 2, which is to take out “all” from “all reasonable steps”. Let me reiterate that this is not intended to water down what is currently in the Equality Act, where employers are responsible for the acts of employees in relation to harassment unless they have taken “all” reasonable steps.

My reason for taking out the “all”, which is what my amendment does, in the new duty to prevent sexual harassment, which all parties around the House believe is an important part of this legislation, is that it now applies to third parties for the first time for some considerable time. The kinds of steps that you can take for employees are many and various. You have handbooks, training, town halls and all kinds of ordinary management mechanisms to allow you to ensure that you take reasonable steps.

When we come to third parties, the number of third parties is boundless. They are not just customers; you do not have to have a contractual relationship with them; they could even be passers-by. There is no bound to the number of third parties who could be brought within the scope of the new duty on employers. For that reason, “all reasonable steps” seems to imply an almost infinite number of steps that employers could take. We have to think about the impact on employers and, in particular, on small businesses which struggle to cope with things such as that. I submit that where other duties are placed on corporate bodies to do things, they are normally accompanied by a simple reasonableness test, not one embellished with something such as “all”. I believe this amendment is not malign. It tries to fit with the new duty and the expansion of the area it covers. I beg to move.

Amendment 1 agreed.