Employment Rights Bill (Second sitting)

Chris Law Excerpts

Committee stage
Tuesday 26th November 2024 Public Bill Committees

[The Chair]

I am going to try to get in three more Members in five minutes, but would you like to respond to that, Gemma?

Gemma Griffin: Just to say that jobs either exist or they do not. It is very black and white for me. Fire and rehire is always a bit of a horror story, particularly when you look long term at the skills and intelligence that the people have on your operation on how to work. For me there is always another solution. That is my point of view.

[Chris Law (Dundee Central) (SNP)]

Q I am focusing still on fire and rehire. Listening to the comments made in the last five minutes, I think the consensus is that we want to see the end of fire and rehire, and I completely support that. However, when you look at the detail of the Bill, there could well be a loophole to allow it to continue. There is a clause that says that there is an exception for those in “financial difficulties”. What are your thoughts on that? For example, who defines what the financial difficulties are and who decides how that is to be negotiated? For me, using the term “financial difficulties” is a loophole to enable any employer to say, “We are going to have to let you go in this circumstance.” Do you agree with that, or do you think more work needs to be done on it?

Mick Lynch: I think we have to be very careful, because companies are very good at creating entities that are subsidiaries of subsidiaries that are based in other jurisdictions, with all sorts of measures that are far too complicated for a simple soul like me. I would like the reporting of a business to be very straightforward. Everyone will know whether a business is failing, and fire and rehire for a failing business is not going to work in many instances. Certainly on the onshore side, it is likely that the business will fold before such measures can be brought. And of course it is very difficult to do what P&O did because it relies on bringing people from overseas to replace people.

Grant Shapps, last year, or the year before, said at one stage that he was going to replace all the railway workers in Britain, so there was actually a Government Minister promoting fire and rehire during our dispute. So I think we have to be very careful not to allow loopholes. I know that accountants and auditors are very good at creating loopholes, but as far as possible it has got to be plain for the layperson to see whether a business is struggling and has genuine business needs to get any hint of an exemption, and they should be very rare indeed if they are to exist.

Martyn Gray: Quite simply, if directors can sign off the business as still remaining as a going concern, fire and rehire should not be an option. If we are looking at a scenario where directors are happy to say under companies legislation that it is a going concern but they need to do a complete restructure, strip away the employment rights, strip away the benefits, strip away working conditions—things that have been long fought over for many years of negotiation or long thought over for many years of discussions: all the benefits that sit within employment contracts—and strip them back to a minimum, that business is not in a position where it can consider itself a going concern. So I would set a really high threshold and then allow for scrutiny from the relevant bodies. If it turns out that that could have been avoided—fire and rehire in those scenarios—it is clear that those directors should not have gone through that and there must be consequences. So there is probably room for improvement, some tweaks and changes, but I would put it quite simply.

Gemma Griffin: A classic example is that during covid, overnight 80% of our business was gone and we had vessels that were worth a lot of money and a lot of crew. There were the inevitable discussions on redundancies or just stopping and what was going to happen. We made a deal with Nautilus and RMT that we would work on this together, because we were hoping things would come back. It was only in year two that we really had some sense that things would come back. But one of the things that we did was collectively go out to our workforce and say, “It is these jobs versus how about if we work together and we do a pay freeze for the two years and we just take that pain together so that we can have the jobs at the end of it.” And we did that together. If something is going to go bust, it is going to go bust. But if there was a way of keeping the money in a better way—suspending the training and non-essential stuff—we made operational changes. It is too easy to leave it in as a loophole. That loophole is like you are just taking the profits out of the pockets of your people. So I think we need to be careful there.

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

Q Mick, you mentioned that you felt there should be further legislation, which suggests that the Bill is falling short. Could you elaborate on what you would like to see the Government do if the Bill is falling short?

Mick Lynch: Well, we would like it very straightforward that there is going to be provision—an amendment—for sectoral collective bargaining. If there is proper sectoral collective bargaining across the economy, many of the issues that people are dealing with as individuals—individual rights, which they have to enforce for themselves, in many cases—will be dealt with. There is a lot of discussion about probation. We have probation agreements with every employer that we deal with, and we do not defend people who are incompetent or incapable. We have a process, and if we have sectoral collective bargaining, all those things will be covered.

--- Later in debate ---

[Uma Kumaran]

Q Thank you, panel, for your thoughts and representations today. My constituency of Stratford and Bow has a rich history—I am sad that the hon. Member for Mid Buckinghamshire is not here at the moment to listen to this part—and we are rooted in the fight for working people’s rights. It is the site of the 1888 London Bryant and May strike, better known as the matchgirls’ strike.

Paul, 136 years ago, Sarah Chapman was first elected as the TUC rep from the then-formed Matchmakers’ Union. She fought ardently for women’s rights, and she made great representations at the TUC for women’s rights, but it has been 136 years and there is still much more to do for women in the workplace. I am really pleased to see that the TUC has said that

“Labour’s Employment Rights Bill is so vital for women’s pay and equality.”

I am keen to hear your thoughts on why you think that is, and other reflections from the panel.

Paul Nowak: It would be good to hear from colleagues from Unison and Unite, who directly represent hundreds of thousands of women at work. We know, for example, that women are more likely to be employed on zero-hours contracts, and are more likely to be in low-paid occupations. I think things like the fair pay agreement in social care could have a transformative impact on the lives of hundreds of thousands of women who go out to work.

That is alongside all the other provisions in the Bill—for example, the presumption around flexible working, which will allow people to balance work and family life but also, crucially, allow us to bring people back into the labour market who are struggling at the moment to find work that suits their caring and other responsibilities. There is a whole range of provisions in the Bill that will have a direct, positive impact on women at work, and a direct impact on those sectors in which we know that low-paid, insecure employment is most concentrated—retail, social care and hospitality.

Maggi Ferncombe: I represent Unison. We are 80% women. I talked at the very beginning about the significant difference this Bill will make, but I will give you some examples. Paul touched on flexible working. You could sum up this Bill in lots of different ways, but it is going to make such a difference to carers who care as a profession but also to carers who have caring responsibilities outside work, most of whom are women.

I will not touch on the fair pay agreement, because Paul already has, but the other area is the reinstatement of the school support staff negotiating body. These workers are again majority women and majority working part time. It will be transformative for those workers to have a set of standard terms and conditions, opportunities for training and salary, and not to have to take part-time jobs outside of their school work to be able to make ends meet. That will be the transformation for women.

Dave Moxham: We have been fortunate in Scotland—not completely fortunate—to get a bit of a head start on some of this discussion, particularly about low-paid care workers. We have a strong developing consensus that care workers’ voices are women’s voices in the collective bargaining arena, and that is something that we want to develop in Scotland. It is something that I think the Bill may just have to address for Scotland, because this is one of those situations where, because of the devolved nature of the delivery of care, we may need to invest powers in the Scottish Government rather than the Secretary of State. That is something we would intend to submit to the Committee on.

But I think we have really good early indications that a living wage for care workers, and the full involvement of unionised care workers in the delivery and shaping of their services, can pay enormous dividends. We are a long way from getting it right in Scotland, but I think we have got a good start there, which I hope some of the legislation here will reflect.

Hannah Reed: Very briefly, I fully endorse what colleagues have said. I am not going to repeat it, so as not to take the Committee’s time. Many women are part of trade unions because they want their voices heard and they want to be able to address issues such as inequality, bullying and pay discrimination in the workplace. The introduction of equality reps’ rights will provide an important focus to say that equality must be at the heart of the negotiating agenda within workplaces.

Alongside that, I recognise that there are improvements to parental rights that will help to ensure that there is a fairer share of parental responsibilities in the home. We have already talked about a lot of zero-hours contract workers being women. One of the things we are very aware of in hospitality is that, too often, employers bring in too many workers for shifts and say: “Sorry, we do not need you any more. Go home.” They then cancel a shift without any compensation for the workers for their travel time, costs or childcare. We hope the Bill will help to address some of those concerns.

[Chris Law]

Q Following on from Mr Moxham’s comments, I wonder whether there are parts of this UK-wide Bill that give you concern for employment rights in devolved nations where devolved Governments already have responsibility for employment relations? Is it not time that employment law was devolved, as is supported by the STUC, TUC and Scottish Labour, and as already exists in Northern Ireland? That is not least because it will help to protect us from future Conservative Governments that may wish to repeal all the good legislation that is coming forward.

Dave Moxham: There is a growing consensus in favour of the devolution of employment law to Scotland, but I think we all know that the Bill cannot achieve all of that, whether this Committee was in agreement with it or not. What is of interest to us is the interface between employment law at a UK level and the responsibilities of the Scottish Government, who obviously employ the vast majority of the public sector in Scotland. In a sense, that is what I am referring to here. Through procurement and other regulations, the Scottish Government are working with us to deliver collective bargaining arrangements in Scotland, which interface and have a potential complication—if not conflict—with what is in this Bill. We would like that to be looked at.

It is important to recognise that not all employment law is reserved to Westminster. In Scotland, there are the Agricultural Wages Board and the employment tribunals already, and a range of other things are devolved. Partly with respect to Wales, which I will not try to speak for, but definitely with respect to Scotland, which I will, there may be aspects of this Bill that might need to be looked at, particularly the relative responsibilities of the two Parliaments.

[Dr Tidball]

Q Why are the changes to statutory sick pay in the Bill so significant, and what opportunities do they bring for disabled workers and those who have long-term health conditions?

Paul Nowak: Why is it so important at the moment? We have 8 million people who are reliant on statutory sick pay, which does not kick in until day three of illness. That means that you literally have people, often disabled workers but not exclusively, dragging themselves into work despite the fact that they are ill, and they are often then spreading ill health. I will give you a practical example, Dr Tidball. I was at a mental health hospital in Blackpool last year where a group of women workers had needed to take strike action, while working in an NHS mental health hospital, because they did not have access to day one sick pay. They are people who were going into an NHS setting when they were clearly unwell, because they could not afford to take time off.

We also have an issue where we have over a million very low-paid workers, mainly women, who do not get any sick pay at all because they do not meet the lower earnings threshold. I think that the Bill will be transformative, and we will get to a situation where people are not afraid to take time off if they are ill because they are worried about whether they will be able to pay the rent, mortgage or bills. I think it is absolutely essential, and a really important part of those basic day one rights that every worker should be entitled to.

Maggi Ferncombe: I concur with everything Paul said. I would only add that we end up with different workers working in the same workplace under different terms and conditions. One group of workers who cannot afford to take a day sick, because they do not get paid, potentially bring in an illness and infect other people. In the public sector, such as in health settings, they are infecting not only the workforce but the public. It will be significantly different for all of those people.

Hannah Reed: As we saw from the pandemic, it is really horrendous when people feel pressured to go into work and put themselves and their colleagues at risk. Therefore, day one rights to SSP are obviously really critical. Moving forward, we would like to see an uplift in SSP because we still have one of the lowest rates in Europe, but the Bill represents a significant step forward, as does the recognition that there will be more collective bargaining. We as trade unions will negotiate for day one rights, often at full pay and not simply at the level of statutory rights.

We are also looking forward, not just with the Bill but moving forward with the wider “Make Work Pay” measures, to working with the Government on the health and safety review. It is regrettable that there is nothing in the Bill on health and safety. We hope that the Government will continue to prioritise that, addressing not only issues about mental health in the workplace but the impact of long covid, which disadvantages some people. We recognise that not everything can be done with this Bill, but we look forward to that ongoing programme of work.

--- Later in debate ---

[Dr Tidball]

Q Jemima, you described the Bill as a “win for women”. Why do you feel the measures in the Bill are so transformative, and how will they benefit working families, women and disabled women?

Jemima Olchawski: We know that women are currently more likely to miss out on statutory sick pay because they do not earn enough to meet the threshold or have not been in their roles as long; you heard evidence earlier about the impact on people who have to try to work when they are not well enough, and the impact on incomes through people not being able to work. Women are more likely to be juggling work and care, so they are more likely to need the flexibility and protections in this Bill. That is why getting the piece around flexibility is so important, whether it is because you are caring for children, for disabled children or for elderly relatives. We also know that one in 10 women we surveyed in our research who had been experiencing the menopause had left their workplace as a result of their symptoms, and flexible work and support in the workplace is really important to enable them to continue to participate when they are at the peak of their careers and skill levels. They should be allowed to thrive and be in their prime.

We know that the majority of households in poverty have at least one adult in work, but at the moment we do not have a system that properly supports either lone parent families, which are predominantly women, or households where both parents want to work. We also know that 40% of women who are not working would work more hours, or would work paid hours, if they had access to flexible working, so these measures are also really important as a part of overall efforts to address poverty and prevent child poverty.

Joeli Brearley: Adding to what Jemima has said, particularly on flexible working, the current law is that you have a day one right to request flexible working, and that has obviously moved from having had six months in a job. A right to request is still a right to decline, and we strongly feel that it does not go far enough in changing the dial on flexible working.

I know that the RPC opinion on flexible working has said that there is no evidence that we need to change the law on this. There will never be enough official evidence because those who want flexible working tend either to ask for what they think that they can get—or, if they know that it will not be granted, they do not ask for it at all. TUC research found that a third of people who want flexible working do not ask for it, despite needing it, because they think it will be rejected, and a further third ask for what they think that they can get, rather than what they actually need to manage their personal and professional obligations.

To really change the dial on flexible working, you have got to switch this on its head, and an advertising duty would do that. It is a hugely ambitious change; it is not a slight tweak to the current legislation, which is a much easier thing to do. An advertising duty would ensure that employers design jobs as flexible from the outset. It would mean that, in a job advert, employers would have to stipulate the types of flexible working available, and the candidate they chose would have a legal right to take up employment on whatever arrangement was stipulated in that job advert. The pushback on this has been, “Well, not all jobs can be flexible.” That is of course true, so if you do not believe that a job can be done flexibly, you could stipulate that and set out the reasons why.

The duty would particularly impact the women we work with. They would not be in a situation where they are having to move job. At the moment, they need to go to a new job and then ask for the flexibility they need to fulfil their personal and professional obligations. If at that point they find out that that is not possible, they have to leave that job—and both employer and employee lose out. We are currently trying to shoehorn flexibility into a very rigid structure, and we need to really change the culture. We believe that an advertising duty is the way in which you do that.

If we are not going to be that ambitious, and an advertising duty is off the table, we really need to reduce the number of reasons that you can decline a flexible working request—we believe that it can be reduced to three. We need to make it a legal right to be able to request flexible working from the point at which a job is offered rather than the first day of employment. That makes complete sense for everybody. Finally, we need to have the ability to appeal decisions to a third body, perhaps the single enforcement body. We also want employers to have to publish their flexible working policies online so that employees can see them. It would be a game changer and would really shift the way in which our employment market works, and it certainly would be a game changer for women.

The other thing in the Bill that I would really like to talk about is parental leave—the fact that it is not remunerated and that you are moving it to the first day of employment. We know that the take-up will be very low. We did some research with the Centre for Progressive Policy that found that if you increase paternity leave to six weeks and pay it at 90% of salary, you reduce the gender pay gap by 4% and you increase labour force participation, particularly by women. We really need to keep up with our European counterparts and increase paternity leave. Two weeks at £182 a week is not good enough, and we know that one in four dads are not even taking their two weeks because they cannot afford to do so. Families are losing out as a result. It is really bad for kids if dads and second parents are not enabled to spend time with their children. It is really bad for women, and it is a big cause of the gender pay gap, so we would really like to see the parental leave review happen as quickly as possible, and paternity leave increased, ringfenced and paid properly.

Jemima Olchawski: To come back on flexible working, Fawcett has been campaigning for that advertising duty and agrees that it is really important to make these measures meaningful. It is also important to recognise that this is good for employers because it increases the pool of talent that they have access to, rather than being able to get applications only from people who meet a rigid but not relevant set of criteria. It broadens it out to everyone who genuinely can do the job, which benefits everyone and is hugely important for enabling women to succeed at work.

[Chris Law]

Q I wanted to explore something a bit more, Joeli, because my ears pricked up when you talked about non-disclosure agreements and the thousands that sign away the complete rights of women. Could you tell me a bit more about your research, and could you also tell us a bit about what lessons have been learned from Ireland? I really want to explore that.

Joeli Brearley: Sure. Non-disclosure agreements are a real problem. We do not know how many exist, or how many women who experience discrimination—I am saying women because I work with women; of course, men sign them as well—sign them, because of course they are non-disclosure agreements, so nobody can talk about them. We run a mentor programme where we pair up women who are taking legal action against an employer with somebody who has been through that process, and in 90% of the cases that we work with, they end up signing a non-disclosure agreement.

[Chris Law]

Ninety per cent?

Joeli Brearley: Ninety per cent; it is a significant proportion. Often, these are for quite measly sums of money. They are pushed on women when they are feeling very vulnerable. Women are told that, if they sign this non-disclosure agreement, they will get a really good reference and it will all go away—“You get this lump sum of money, off you go.” But what they mean is that you cannot talk about what has happened to anybody. Legally, you can talk about it to your spouse and your lawyer, but that is about it. That really damages the mental health of women who sign them, because they cannot say what has happened to them. They sort of harbour this dirty secret, and that really is very damaging to them.

It also means that we do not know what is happening behind companies’ closed doors. I can tell you now that there are companies that win awards for being brilliant employers for women, but behind closed doors they are pushing women out when they are pregnant and forcing them to sign non-disclosure agreements so they cannot talk about it publicly.

Along with Zelda Perkins, who runs Can’t Buy My Silence, we would like to see that non-disclosure agreements are unenforceable unless the claimant—the person signing it—wants them to be enforced. That is a piece of legislation that Ireland has just pushed through: making NDAs unenforceable unless the claimant would like them enforced, and unless the documents are written in very clear language—often non-disclosure agreements are really complicated to read and nobody can fully understand them—and there is still the opportunity to report what happened to a trade union and to the ombudsman. Again, at the moment nobody knows what is happening because, by their very nature, non-disclosure agreements stop you talking to anybody, so we would like to see a similar change here.

[Uma Kumaran]

Q Thank you both for your representations. Joeli, I follow your work and have a lot of friends who have followed Pregnant Then Screwed—thank you. Jemima, I have read the Fawcett Society’s report on the gender pay gap, and heard your views here. Listening to you both today has put some new questions in my head on top of those that I already wanted to ask.

You have both talked about maternity provisions and what they could mean for the country. More broadly, what is the benefit to the economy and to businesses of having stronger maternity provisions as set out in the Bill?

Joeli Brearley: By maternity provisions, do you mean maternity leave and pay?