Employment Rights Bill (Ninth sitting)

Jon Pearce Excerpts

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[Greg Smith]

I am building up to my wider point. To skip ahead, there will be circumstances where, even within the reasonableness test—I understand that test—something so unexpected and unforeseeable happens that the employer could not in any way have planned a protection for their employees around that. Despite that, the employer might find themselves challenged in a tribunal or, worse, some form of criminal investigation about why they did not take reasonable steps against a totally unexpected and unplanned-for eventuality. I accept that, in most cases, there are practical steps that could be put in place to prevent harassment of any sort, but there will be times where that reasonableness test could fall over and someone could find themselves in a very tricky spot, unable to account for why they did not prepare for the totally unexpected.

[Jon Pearce (High Peak) (Lab)]

I refer the Committee to my entry in the Register of Members’ Financial Interests and my membership of the GMB. The hon. Gentleman is making the point that it would be impossible for an employer to reasonably avoid something so extreme and out of the ordinary, but that would actually fall directly in the test, because the tribunal would look at whether it was reasonable for the employer to have put in arrangements, procedures or preparations to avoid a likely, foreseeable scenario. His concerns are completely misplaced, because no employer could reasonably avoid a situation that was impossible to avoid.

To go back to the fundamentals, as the hon. Gentleman said, we and employers should be taking all appropriate and reasonable steps, because 40% of women in the workplace suffer sexual harassment. These measures are reasonable in and of themselves, so I put it to him that he is worrying about something that is covered by the test.

[Greg Smith]

In many respects it is my job to be worried, to properly kick the tyres and to understand the operability of what the Government are trying to achieve. I certainly take the hon. Gentleman’s point on sexual harassment, and there is very clear criminal law in place that is probably more appropriate to bring perpetrators of such heinous crimes properly to justice. My concerns about the reasonableness test are less about that which can and should be pursued through criminal legislation; they are more about other forms of very subjectively tested harassment, as well as some points that I hope to make about freedom of speech. Hopefully, the hon. Gentleman will reflect on and understand those concerns when I get to that point.

Employment Rights Bill (Tenth sitting)

Jon Pearce Excerpts

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[Steve Darling]

I am afraid that the hon. Gentleman and I will have to agree to differ on that point. I am sure that the Government’s proposals will support those who are facing sexual harassment from third parties. As colleagues on the Committee have highlighted, the reality is that the legislation is about taking all reasonable steps. It is not saying that when somebody walks in and abuses an employee it is an immediate red line. The reality is that the employer needs to have taken all reasonable steps. I am very comfortable with the proposals. The Liberal Democrats will vote against the amendment.

[Jon Pearce (High Peak) (Lab)]

I promise to keep my comments brief. Clause 15 will amend section 40A of the Equality Act 2010 to provide that an employer must take all reasonable steps to prevent the sexual harassment of employees in the course of their employment.

The concept of “all reasonable steps” has been part of the Equality Act 2010 since its inception, as my hon. Friend the Member for Gloucester referred to. Section 109 of the Act provides a defence for the employer in respect of the discriminatory acts of the employee. It is about vicarious liability: in effect, if the employer can show that it has taken all reasonable steps, it will not be liable for the acts of the employee.

Exactly the same “all reasonable steps” test is being applied here. In my experience as an employment lawyer, employment tribunals are very well-versed in it and have a huge amount of experience with it. It would be a matter of fact for them to determine. It is important to understand that it will be, and always has been, a proportionate test that looks at the size and resources of the employer and the context of the employment situation.

There will inevitably be guidance from the Equality and Human Rights Commission on how employers should take all reasonable steps and what those steps might be, but it will be fact-specific. It may well include steps to mitigate, such as some form of risk assessment, policies, training or means by which an employee who is at risk of or has suffered third-party harassment can report it and action can be taken. All those things are fairly standard. They happen already as a result of the vicarious liability element of the Equality Act; the clause would just extend them to third parties.

All third-party harassment cases and issues arise from a case called Burton v. De Vere Hotels, in which Bernard Manning made racist comments to a waitress at a De Vere hotel and the waitress brought a claim. Both the original employment tribunal and the employment appeal tribunal held that it was harassment, but it was overturned on appeal because the right did not extend to protection from third-party harassment. That was the start of the process of trying to protect employees in such circumstances.

The employment tribunal and the employment appeal tribunal said that the employer knew what was likely to be in Bernard Manning’s act—we can all imagine what might be in Bernard Manning’s act—but did not take the necessary steps to protect the employee in the circumstances. These are exactly the scenarios that the shadow Minister raised, in which we would expect the employer to consider very carefully who was staffing the event, what policies should be in place and how any issues should be managed—including, for example, by warning Bernard Manning that he might not wish to make racist remarks to members of staff.

When we talk about risk assessments, we must remember that the biggest risk is that third-party harassment will continue. That is the most fundamental issue. I emphasise a point that the shadow Minister will find relevant: a 2023 Buckinghamshire healthcare NHS trust staff survey showed that there had been nearly 400 incidents of sexual harassment by third parties. Many of those incidents will have affected his constituents. It is vital that we make this legislation, because employee representatives at the trust have said that one thing that would help is a protection against third-party harassment. If we do not include this provision in the Bill, we will continue to leave his constituents exposed. I encourage the shadow Minister, who I genuinely believe cares about harassment, seriously to reconsider his opposition to the clause.

[Chris Law (Dundee Central) (SNP)]

It is a pleasure to see you in the Chair, Mr Stringer. I rise to speak in support of new clauses 39 and 40, which stand in the name of the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts).

The new clauses follow the publication of the Health and Safety at Work etc. Act 1974 (Amendment) Bill, a presentation Bill that the right hon. Member introduced in co-operation with the Suzy Lamplugh Trust and Rights of Women. They would address a critical gap in workplace safety by mandating proactive employer responsibilities to prevent all forms of violence and harassment, including gender-based violence.

The Health and Safety Executive does not currently accept domestic abuse within its remit. That might come as a surprise to some Members, but the reason is that domestic abuse and other forms of gender-based violence are not explicitly covered in the 1974 Act, even though the Domestic Abuse Act 2021 underlines the fact that employers owe their employees a duty of care that covers protection from domestic abuse.

Discrimination law inadequately protects workers from gender-based violence beyond sexual harassment, especially when such violence is not physical. The UK’s ratification in 2022 of the International Labour Organisation’s convention 190 means that the UK should take a comprehensive approach that addresses all forms and threats of gender-based violence in the workplace, psychological and emotional abuse, physical abuse and stalking, including with respect to people commuting to and from the workplace.

New clauses 39 and 40 would address those issues. They would go further than the Bill’s provisions on protection from harassment, because new clause 39 would introduce clear, actionable duties for employers to safeguard employees from gender-based harm through risk assessments, policy development and training. New clause 40 would mandate that the Health and Safety Executive create an enforceable framework that holds employers accountable and fosters inclusive, violence-free work environments for workers.

I understand that this may have been the Minister’s first opportunity to hear these points. I hope he will consider them, perhaps on Report.

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[Sir Ashley Fox]

It is a pleasure to see you in the Chair, Mr Stringer. I do not believe that unfair dismissal should be a day one right. I think this is a fundamental error by the Government. It is interesting that during the previous Labour Governments, under Tony Blair and Gordon Brown, the qualifying period was one year. There was a reason for that: by reducing it—by making it a day one right—we introduce an aspect of procedural unfairness to all small businesses. Small businesses might decide after a week that they do not want to keep someone in employment. They might not follow the letter of the law, and it might be procedurally unfair because not every t was crossed and not every i was dotted, and that will lead to an unfair dismissal case.

[Jon Pearce]

Will the hon. Gentleman give way?

[Sir Ashley Fox]

Let me just make this point. My hon. Friend the Member for Mid Buckinghamshire asked what the rationale was behind the day one qualifying period. I think the answer is that it is a demand from the trade unions; it is one of a long list of demands from the trade unions. This Bill is payback for the trade unions’ support for the Labour party. Those demands continue to come in, and we know that because the Bill is not even properly written. It is half-written—

--- Later in debate ---

[Jon Pearce]

It is a pleasure to serve under your chairmanship, Mr Stringer. Protection from unfair dismissal is already a day one right in respect of certain carve-outs from the two-year qualifying period, including for dismissal relating to a protected disclosure—whistleblowing—refusal to allow somebody to undertake jury service, or refusal to allow somebody to take family leave. That protection, and the principle of unfair dismissal, is already in statute as a day one right.

Let us look at other day one rights, which are worth exploring a bit further. As my hon. Friend the Member for Birmingham Northfield said, employees have a whole raft of day one rights, including most of the discrimination acts under the Equality Act and protections for whistleblowing. I want to continue my hon. Friend’s argument in order to try to give employees reassurance, which I think will come with guidance and the statutory probation period.

Certainty on this issue would help many employers. What I found in practice was that there would be a probation period in the contractual relationship, but smaller employers that I advised often did not have a policy; they just had a shortened notice period—often a month, rather than the three months after the probation period. There would be no structure in place. All too often, I found that many of those employers got themselves into difficulty because they believed that they did not have to follow any process whatsoever, due to the two-year qualifying period.

More often than not, those employers were dismissing people for reasons of capability: the employee had not got up to the necessary standard, and there was an issue with their work. In those circumstances, the employer often did not have much of a structure or procedure in place, and would eventually get to the point at which it would, in effect, give up and decide that the employee was never going to get to the standard that it wanted within the probationary period. The employer would dismiss people without any process or meeting—even without speaking to the employee at all—and without taking any evidence.

All too often in the cases that I dealt with, it would come to light that there was a reason for an employee’s lack of capability, which related to an impairment. Many of those impairments were protected under the Equality Act, and those employees had protections against discrimination on the basis of disability. They had a right to reasonable adjustments that the employer had not considered because it did not ask the question, and which had not been implemented. In those circumstances, the employer is exposed to uncapped discrimination claims, which are very serious and very difficult to respond to, because no process has been followed.

It is really important that we seek to reassure small, medium and large employers that having a light-touch, clear structure will mean that no employer falls into that trap again, and that we will save a lot of employers unnecessary litigation.

[Laurence Turner]

Does my hon. Friend agree that, in those cases where someone has ended up taking the equalities route because that is the only route available to them, it can be particularly reputationally damaging to the employer? Does he also agree that, because by the nature of those claims—particularly where they relate to disability discrimination—the system requires the claimants to stress an impairment of some kind, that process is also distressing for the claimant in a way that is wholly unnecessary? Making these changes would at least avoid those circumstances for both employer and employee.

[Jon Pearce]

I absolutely agree. Often, in those circumstances, it is extremely distressing for the employee, who, had the reasonable adjustment been in place to assist them with disability or to enable them to get to the required standard, would still be employed. They have to face the extra hurdle of declaring their particular impairment to the world.

Reputationally, these claims can often be hugely damaging for employers that had never intended to discriminate and would never have discriminated against an employee, but for the lack of process. As I say, there is nothing new in day one rights—protection from unfair dismissal is already, in certain circumstances, a day one right; Equality Act claims are a day one right; whistleblowing is a day one right—but the Bill will help employers not to fall foul of those day one rights that already exist and give a far clearer structure to the employment sphere. With those reassurances and with guidance, there is nothing for employers to fear from this legislation.

[Anneliese Midgley]

It is a pleasure to serve under your chairmanship, Mr Stringer. About a year ago, one of my constituents in Knowsley was told that she needed IVF. She went to her employer to let them know that she was going to start treatment, and a few days later she was sacked. She was a few weeks short of having worked two years for her employer. She had previously passed probation and had no previous complaints or warnings on her work. Hon. Members will be happy to know that she did get pregnant and she had that baby a month ago, but while trying to get pregnant and in the early stages of her pregnancy she could not find another steady job. No employer wanted to take her on and being unemployed obviously caused immense stress.

My constituent did not qualify for maternity pay. She has worked hard all her life; she has studied and has a doctorate. She is now with a small baby on a statutory maternity allowance of £184 and is still not in a job. One in nine women are forced out of the labour market every year due to pregnancy and maternity discrimination. The two-year period in which someone can be dismissed was used unfairly against my constituent. The Bill will protect women across the UK, allowing them the right to a secure job and a family. I am sure we can all agree that the current situation for workers is unacceptable.