Employment Rights: Terminal Illness

Laurence Turner Excerpts

Wednesday 18th December 2024 Westminster Hall

[Laurence Turner (Birmingham Northfield) (Lab)]

It is a pleasure to serve under your chairship, Sir Edward. I congratulate my hon. Friend the Member for Corby and East Northamptonshire (Lee Barron) on securing this important debate. I draw attention to my entry in the Register of Members’ Financial Interests and my membership of the GMB.

I add my thanks to midlands TUC for the work it has done for many years to promote and champion this campaign. I will also mention the work that the GMB midlands region has done in connection with the cause. Two names are on the record, and I echo the comments made by my hon. Friends the Members for Corby and East Northamptonshire and for Sherwood Forest (Michelle Welsh). I pay tribute to Jacci Woodcock, who struck the spark that lit the flame, and my friend of many years, Richard Oliver. It is a pleasure to see him in the Public Gallery. He has brought real passion and expertise to the cause.

We have heard today that there are weaknesses and gaps in the Equality Act. I hope that this is the subject of consensus across the House. When in 2022 the then Minister, the hon. Member for Mid Norfolk (George Freeman), responded for the Government go a debate on the Terminal Illness (Support and Rights) Bill, although he acknowledged that many workers who have a terminal illness are covered by the definition of disability under the Equality Act, he added:

“I say, ‘the overwhelming majority’, but one thing that we might want to look at offline, as it were, is trying to ensure that that is everybody”—[Official Report, 18 November 2022; Vol. 722, c. 1010.]

who is covered. We are still not in that place today. Although a terminally ill worker can in principle bring a case before an employment tribunal, in too many cases, sadly, there are obvious barriers to doing so. My hon. Friend the Member for Wolverhampton West (Warinder Juss) has already pointed out that there is very little case law in this area. Although in theory a posthumous employment tribunal case can be brought, in practice it rarely happens.

Although the definition of disability inherited from the Disability Discrimination Act 1995 was probably not written with terminal illness in mind, there are circumstances where a terminally ill worker who is discriminated against at work would not fall under the protections of the Act, but someone in the early and possibly asymptomatic stages of a terminal illness would fall into that category. So there is a strong and compelling case for revisiting the Equality Act, but there are steps that can be taken in the intervening period.

Section 22 of the Equality Act established powers to bring in regulations on matters to be taken into account when employers and other bodies make reasonable adjustments. If regulations were brought in for the purpose of establishing that it is reasonable to take certain steps to accommodate the needs of workers with a terminal illness, that would be a helpful and clarifying step, which would be welcomed by employers as well as workers who develop a terminal illness, because employers are looking for clear guidance in this important area.

Similarly, the Equality and Human Rights Commission statutory code of practice on employment is the consolidated set of statutory guidance on the application of the Equality Act in the workplace, but that code of practice has not been updated since 2011 and it does not clearly or explicitly cover or reference terminal illness at any point. Were that code updated to take account of the particular problems facing workers who have a terminal illness, that would also play a positive and constructive role. Tribunals must have regard to the guidance from the Government Equalities Office, now the Women and Equalities Unit, on matters to be taken into account in determining questions on the definition of disability. That code has not been updated since 2013, and it does not clearly cover matters relating to terminal illness. Some helpful clarification that could be introduced through that guidance. Nevertheless, some problems cannot be addressed unless and until the Equality Act itself is revisited. The point has already been made that workers who develop a specified illness—cancer, for example—automatically fall under the definition of disability, but people who develop a different terminal illness do not. There is a very strong case for revisiting the Equality Act in that regard.

It is welcome that the new Government have made commitments in the “Make Work Pay” document, which states:

“Terminally ill people deserve security and decency during the hardest period in their lives.”

The Government encourage employers and trade unions to negotiate and sign up to the Dying to Work charter, and will work with trade unions and others to ensure that workers diagnosed with a terminal illness are treated with respect and dignity and supported at work. We all look forward to hearing from the Minister about the progress that has been made on those commitments.

We have heard a lot in this Parliament about the importance of a good death and the steps that we need to take in all areas of public policy and law to ensure that people are entitled to and receive support and dignified treatment at the close of their day. That must apply in the field of work and employment as much as in the health service and in all the other respects that we have considered during very emotive and considered debates in this Parliament. It must be hoped that, in the course of the four or five years of this Parliament, real and meaningful progress will be made to extend the charter and other protections to the hundreds of thousands of people who will, sadly, fall ill with a terminal illness and need support at work.

Employment Rights Bill (Thirteenth sitting)

Laurence Turner Excerpts

Committee stage
Tuesday 17th December 2024 Public Bill Committees

[Sarah Gibson (Chippenham) (LD)]

It is a pleasure to serve under your chairmanship, Mr Mundell. I really welcome the clause. Despite the fact that their uniforms, pensions and contracts said “NHS”, staff at a community hospital in my constituency only realised that they had been effectively TUPE-ed over to a private business when they failed to receive the £1,000 bonus that all their colleagues in the main hospitals got. One may say, “How naive of them; they should have read their contracts better,” but most of them had been NHS workers for 25 years, so they were completely unaware that this had happened to them and that they were no longer entitled. I must thank the then contractor, a charity, for lobbying hard to make sure that eventually they got some kind of bonus, but to be suddenly without those conditions was quite frightening for them. So I welcome these measures.

I take some issue with what the hon. Member for Mid Buckinghamshire said. For many years, I served as part of Wiltshire council, which is a Conservative-led council. It was locked into a service contract for maintenance that was poor and used to lower wages, producing a system where we had very little maintenance. Our town councils are now having to pick up the bill for repairing grounds and play areas because the company, although it had the contract and was paid by the local authority, was not carrying out the works. Therefore, I welcome this measure and I am pleased to support it.

[Laurence Turner (Birmingham Northfield) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Mundell. Merry Christmas, everyone. In that spirit of glad tidings, I draw the Committee’s attention to my declarations in the Register of Members’ Financial Interests and my membership of the GMB and Unite trade unions.

Clause 25 enables the reinstatement of one of two bodies that are to be reinstated by the Bill—the other is the school support staff negotiating body, which I hope we will come to today. The clause stands in a long and proud tradition in this Parliament, and at its heart is a simple question: what duty does the state owe to people who perform services on its behalf? The phrase “two tier” has become highly charged in recent years, but I hope that we can channel some of that spirit of protest towards the iniquity of two-tier workforces.

The injustice is easy to describe—in fact, the shadow Minister, the hon. Member for Mid Buckinghamshire, described it. When a public service is outsourced, the original workers’ pay and terms and conditions are protected to a certain extent by TUPE, but those of the workers who are subsequently employed on that contract are not. Even when they carry out exactly the same duties, they will normally be paid inferior rates.

That is understandably a cause of tension and resentment at many sites where services continue to be performed on behalf of the public sector. The original workers who are TUPE-ed over can be singled out for victimisation and adverse treatment on the part of their new employer. We know from the labour force survey, in the days when that instrument was in better health, that many such workers continue to regard themselves as part of the public sector and are motivated by public service. The workers who tend to find themselves in this position are more likely to be women, on lower earnings and from non-white backgrounds.

The case for parity of treatment was made powerfully in the last Parliament by the Defence Committee, which at the time had a Conservative Chair. The Committee’s report on the treatment of contracted staff for ancillary services states:

“In general, the terms and conditions of outsourced employees are worse than those of their directly employed counterparts, with reduced wages and benefits…The Ministry of Defence should do more to ensure that contracted staff receive comparable employment contracts to staff directly employed by the MoD.”

That is precisely what the reinstated and strengthened two-tier code, enabled by this clause, will accomplish.

Two-tier workforces are not just unfair on workers; they represent a failure of public policy. When margins are tight, bidders can end up competing not on efficiency or innovation, but on a squeezing of wages. We need only look at Carillion for a prominent example of what can go wrong, and of the wider liability for taxpayers when a contractor loses sight of its wider operations. The direct cost to the public sector has been estimated at some £150 million, the wider debts to the private sector were in the region of £2 billion, and the National Audit Office has warned that we will not know the true cost for many years to come.

The shadow Minister referred to the sepia-tinted days—perhaps we should say the blue-rinse days— of 2006, but I was grateful for the contributions from the hon. Members for Chippenham and for Torbay, because there is a long-standing and cross-party record on this matter. We can go back to 1891, when the radical Liberal politician Sydney Buxton moved the fair wages resolution, a resolution of this House, which was carried unanimously—at that time, Parliament had a Conservative majority. He said:

“The Government is far the greatest letter-out of contracts in the country, and Government contracts are the most popular for three reasons. In the first place, the contractor makes no bad debts; secondly, he has quick returns; and, thirdly, a Government contract forms a good advertisement. The consequence is, that there is great competition, and tenders are cut down very much at the expense of the labour market. Such a state of things is unfair to the good employer…and injurious to the community. The fair employer is placed at a very great disadvantage as compared with the unfair.”—[Official Report, 13 February 1891; Vol. 350, c. 618.]

Those arguments hold true today. That fair wages resolution was adapted and improved down the years, and took its final form under the Attlee Government in 1946. It has subsequently been exported around the world, in the form of International Labour Organisation convention No. 94. Indeed, those great British protections, developed in this Parliament, apply now in Italy, Spain and such far-flung places as Brazil, but because of decisions taken in the 1980s, they do not apply to contracted-out workers in this country. I very much welcome the opportunity to put that right.

The two-tier code existed previously, between 2005 and 2006. It grew out of an earlier iteration in local government, and it has been in force subsequently in Wales, where the sky has not fallen in in terms of service provision. [Interruption.] If the shadow Minister wants to intervene, he is welcome to.

[Greg Smith]

How does the hon. Gentleman feel that the NHS in Wales is doing—better or worse than in England?

[Laurence Turner]

I would say better, having had some experience. The hon. Gentleman might want to return to that point.

On the substance of the clause, there were some concerns about the original incarnation of the two-tier code. It was purely voluntary and did not contain meaningful provisions for redress where an employer who had signed up to uphold the standards of the code did not follow through. I hope that that deficiency will be remedied when the associated regulations appear.

It is legitimate to have differences on points of principle. After the current Lord Maude abolished the two-tier code, the Secretary of State—now Baron Pickles—said that the Government of the time had

“Abolished the…two-tier code that…hindered the voluntary and independent sector from delivering better value for money.”—[Official Report, 26 March 2015; Vol. 594, c. 166WS.]

The shadow Minister has made much the same point. This was explicitly about driving down wages for the large number of people who are contracted out to deliver public services. I very much welcome the fact that this Government have a policy objective of making work pay. For a large number of people in the labour market who have been overlooked by politicians for too long, the clause represents an important step forward for remedying that deficiency.

[Justin Madders]

We have had a broad debate—very broad from my hon. Friend the Member for Birmingham Northfield, who took us on a canter through the history. He was right that it was the coalition Government who abolished the two-tier code, which is why it is welcome that the Liberal Democrats have realised the error of their ways; I welcome their support on this. Their spokesperson, the hon. Member for Chippenham, made the important point that the inherent unfairness of people doing exactly the same job for the same employer finding out that they are on different terms and conditions and are earning less is a big morale sapper. It is also a big issue in terms of workforce retention—one problem that we often see with outsourced contracts.

I will turn to the shadow Minister’s misty-eyed days at Hammersmith and Fulham, and I will raise him Ellesmere Port and Neston borough council, which was a great believer in direct provision of services; we certainly felt that was the best way to deliver value for the taxpayer and good-quality services. In his contribution, the shadow Minister alighted on the illusion of outsourcing—the fact that consultants can demonstrate that savings can be made, but when you drill into the detail, those savings are always off the back of the workforce. They are not some magical way of doing things differently. It is about cutting terms and conditions and it is about a race to the bottom, which we are determined to end.

[Justin Madders]

I take the shadow Minister’s point. I am not familiar with the machinations of Hammersmith and Fulham council in the 2010s, and it may well be that savings were made by doing things differently. But there is absolutely no reason why that cannot be done directly from a public body: if it is well led, if it is able to have constructive dialogue with its work force, savings can be made.

The difficulty with the shadow Minister’s analysis is that, while he may have been able to find savings for the taxpayer through those kinds of measures, too often the savings are made by cutting terms and conditions for new workers. That is why, as he said in his original contribution, the second or third outsourcing is usually where the savings happen, because it is when those new workers come in on lower terms and conditions that the savings begin to emerge. That is why the whole outsourcing trick is a con, because it is how those savings tend to be made.

When we add in the contract monitoring costs and the profit motivations for the outsourced company to make a living from these things, we can quickly see why it becomes a bad deal for the taxpayer. I certainly make no apologies for putting forward this proposal, because we think it is the right thing to do, to respect and value those who work in public service and ensure that they are paid the same as their colleagues for doing the same work. I therefore commend—

[Laurence Turner]

I thank the Minister for giving way at the death. Does he also recognise that one example of a council that tried to go down the wholesale outsourcing route was Northamptonshire? We all know how that story ended, and Eddie Martin, the Conservative former leader of Cumbria county council, stated that the then Government

“says that outsourcing is everything, but while it might get you an initial cheaper price, that price simply doesn’t last, you lose flexibility, and it causes a great deal of unrest.”

[The Chair]

I call the Minister to rise from the dead.

--- Later in debate ---

[Greg Smith]

The clause builds on the gender pay gap reporting introduced by the last Government. Of course, in 2017 we were on the second of four female Conservative leaders, while the Labour party is still yet to show its commitment to gender equality in its leadership. Perhaps the Minister might be the first female leader of the Labour party—who knows? I gently and slightly naughtily make that point; it is the Conservative party that has shown a clear commitment to gender equality, particularly with the changes to gender pay gap reporting.

Expanding reporting to outsourced service providers does not seem a controversial move, but I urge the Minister to ensure that the provisions that the Government introduce do not create loopholes or miss anyone out; I can imagine various scenarios in which someone might argue that something is not outsourced, even though it is contracted. I urge her to double check that the specific language used does not create something that anyone can exploit or legally challenge. That is to ensure that the provisions build in spirit on the previous Government’s 2017 changes and do not create loopholes.

[Laurence Turner]

I will pick up the point just made about the changes made in 2017. Some of the opposition at that time came from the august institution of the Institute of Economic Affairs, which said that, if the regulations were introduced,

“they may encourage outsourcing of lower-paid jobs which happen to be taken by women (to avoid inclusion in a firm’s own return).”

That point has also been made by other organisations. King’s College London published a study on this matter three years ago, which said that

“focusing on the pay gap headline number can risk organisations seeking to window-dress their figures by outsourcing lower-paid jobs, which in turn worsens overall gender segregation within the labour market.”

Therefore, this extension of gender pay gap reporting to outsourced workers really does close that loophole and remove that perverse incentive—one example of many that we have heard about in this Committee.

We also heard from the Women’s Budget Group; Dr Mary-Ann Stephenson, giving evidence, said:

“We welcome the move to include outsourced workers in gender pay gap reporting…We are very conscious that you will quite often see that the lowest paid workers, particularly in the public sector, are now outsourced.”––[Official Report, Employment Rights Public Bill Committee, 28 November 2024; c. 163, Q176.]

The measures as proposed would effectively link the outsourced employer’s reporting to the reporting of the primary contracting authority. I hope that, when the regulations are drafted, they will shed some light on the extent of outsourcing across the economy; these workers are often invisible in official statistics, which is a wider problem for our understanding of the labour market. However, this move within the Bill is welcome.

I will just come back on one point; the shadow Minister referred to elected leaders of the Labour party. He is quite right to point out that the Labour party has not elected a woman leader—I very much hope that that will happen—but, for completeness, under the Labour party rulebook there is no role of “acting” or “interim” leader. It is therefore important to say, for the record, that in the eyes of the rulebook the noble Baronesses Beckett and Harman were as much leaders of the Labour party as any men who have fulfilled that role, and they served with distinction.

[Sarah Gibson]

I am not sure that highlighting quite how quickly the Conservatives go through leaders is helpful, but we do have to recognise that they have had the highest number of female leaders of any of our parties here, which is to be commended.

On a serious note, I welcome the intentions of clause 27. It is incredibly important that we start to shine a light on outsourcing, especially in the public sector, which I have seen myself, as I highlighted earlier, regarding the Chippenham hospital. To a certain extent, it seems to be a way of hiding some of the less clear and sensible ways we employ people, especially when it comes to low-paid, often female workers. I will therefore be supporting this clause and I am very pleased to do so.

--- Later in debate ---

[Dr Tidball]

I draw your attention to my declaration of interests, Mr Mundell. I am a member of the Community union, Unison and GMB.

I found it difficult to hear, in anything the shadow Minister just said, any rationale for getting rid of this body all those years ago. I missed three years of school as a child because of the surgeries I needed. Incredible classroom teaching assistants helped me to build my confidence and learn to mix with other children again when I returned—making education and learning an escape, a way to express myself, to overcome people’s assumptions about my disability and to feel free.

I stood in my constituency because I wanted to use my skills and experiences to give back to the communities that gave me so much. To know that, because of this Bill and the clause before us now, teaching assistants and other school support staff like the ones who made school a less daunting place for me will once again have a collective bargaining system for pay and conditions—which will ensure that those staff are finally valued and recognised for their vital work—is a very great privilege indeed.

The reinstatement of the school support staff negotiating body in England, previously scrapped by the coalition Government for reasons that still remain unclear, will be key to providing professional recognition for a group of staff who have been overlooked for far too long. As Unison, of which I am proudly a member, has highlighted, the proposals in this clause

“demonstrate that the Employment Rights Bill isn’t just tackling worker’s rights—it holds the key to tackling long standing public policy failures that have been ignored because they affect workers and service users whose voices are too often neglected by decision makers. Tackling this neglect and allowing trade unions to engage in constructive social partnership and better represent their members is long overdue”.

This clause therefore empowers that group of working people, who have been so long overlooked by the Government, to have a better life at work. It will help trade unions to raise standards and pay across the labour market.

[Laurence Turner]

In addition to the interest to which I drew attention earlier, my partner is a trustee of a multi-academy trust.

The reinstatement of the school support staff negotiating body is a hugely welcome measure and long overdue. It is a real shame to hear that there will be cross-party division on this question, because the consequences of the decision to abolish the SSSNB are negative, they are serious and they are now plain to see. We will come on to detailed discussion of the schedule and the amendments, but it is worth reflecting on the rationale that the then Government gave back in 2010 for abolishing the SSSNB. The Secretary of State at the time said—and he never went much beyond this—that the Government had

“concluded that the SSSNB does not fit well with the Government’s priorities for greater deregulation of the pay and conditions arrangement for the school workforce.”

What has been the consequence of that decision? We saw it last year, when the Low Pay Commission, for the first time, reclassified school support staff roles as low-paying occupations. That should be a mark of shame on the Governments that oversaw that unhappy outcome—which, as I said, was a consequence of the decision to abolish that body.

[Sarah Gibson]

I completely agree with the hon. Gentleman; I must make a declaration that my parents were a state headmaster and headmistress before their retirement. One issue that I strongly feel needs to be taken into consideration—though perhaps it is not relevant to this Committee—is that funding for education in general has driven down the pay of these roles. If there were good funding for the education sector in general, these roles would not need so much protection. While we are considering giving more bargaining power, we also need to ensure that there is enough funding for education so that those roles can be paid, otherwise there will merely be fewer of them. I think that is something we need to take into consideration, do you not?

[The Chair]

Mr Turner needs to take it into consideration, not me.

[Laurence Turner]

I thank the hon. Member for Chippenham for her intervention. I agree with her up to a point. Teaching assistants’ wages have increased by about 24% on average over the period that we are talking about, while the consumer prices index has increased by 40% over the same period, so there has been an erosion in wages. We could talk about funding at great length. However, as she said, it is beyond the scope of the Bill and the clauses that we are discussing.

The matter goes beyond funding and pay, as important and relevant as those two issues are, because it is also about contracts and about terms and conditions. There are real problems, which we will discuss, involving the construction of term-time only contracts as they currently exist. We saw in the Harpur Trust v. Brazel decision the liabilities created for employers, as well as for workers, by existing contracts inherited from negotiating arrangements that are not fit for purpose. There is a strong rationale for extending and separating the negotiation over terms and conditions, as well as over pay. That point has been recognised for a long time. Given the complaints that we have heard from the Opposition about what they see as the expeditious drafting of policies and clauses in the legislation, I hope they welcome having this matter before us, which has precedent and is the result of more than 20 years of policy development.

It was recognised as far back as the 2005 schools White Paper that an early challenge for the school workforce agreement at that time—signed, I think, in 2003—would be ensuring fair pay and rewards for support staff. We want to ensure that that is supported by a more coherent approach to union recognition at school level, clearer career paths and skills escalators, and a more standardised and benchmarked approach to grading, job descriptions, contract awards, deployments and school support staff training and development. Those are exactly the issues that we are talking about. It is sad to look back at those complaints from 20 years ago and to realise just how little progress has been made.

The decision to increase the number of school support staff workers, which was carried forward by Governments of all parties, was taken because at the time the workload of teachers was far too high. There were serious problems of classroom management and teachers found themselves undertaking a huge number of administrative duties, rather than teaching. Those complaints are current today, but it was worse then, and that was remedied by the introduction of more school support staff workers.

My hon. Friend the Member for Penistone and Stocksbridge spoke about her own experience. I can also speak from direct experience, having been a special educational needs and disabilities kid during that time, about the value to me of school support staff workers. I do not think I would be here in this Committee without them. However, for too long we collectively have not recognised their contribution.

The Minister made the point that the National Joint Council for local government services is not adequate for school support staff workers. The Green Book was never designed to accommodate those roles, and it is an anachronism that school support staff workers continue to fall under the Green Book. Indeed, while the Confederation of School Trusts has some wider concerns—I think one of the Opposition’s amendments is modelled on the submission that the CST made to the Committee—it has said that it agrees that the time is right to take school support staff negotiations out of the local government umbrella.

I know from representing school support staff workers in the past that they are some of the lowest paid workers in the public sector. I have represented some—primarily women—who have been forced to resort to food banks and payday loans to make ends meet, but they often still dip into their own pockets to provide educational essentials to children who do not have enough to get by. That record has led school support staff to be reclassified as being in low-paying occupations, which should really be a badge of shame for us. The logic of live and let be, and of deregulating and letting a thousand flowers bloom across schools, has not worked, and I would be interested to hear what the Opposition have to say on that.

[Sir Ashley Fox (Bridgwater) (Con)]

The hon. Gentleman says that the great educational experiment has not worked, but would he not acknowledge the significant improvement in our children’s ability to read, write and do mathematics over the past 14 years? Scores in the programme for international student assessment show that standards of reading, writing and mathematics have improved enormously in England—although they have regrettably fallen in Scotland, for reasons we can imagine. I am really proud of the achievements of the coalition and later Conservative Governments in improving educational standards. The freedom granted to academies—the freedom to innovate and to employ staff on the terms and conditions that they wish—has been critical in that, but the Government are rolling back those freedoms. Does the hon. Gentleman acknowledge the educational achievements of the past 14 years?

[Laurence Turner]

That was quite a generous amount of time for an intervention. The hon. Member may wish to go back to the record, because the point I made was that the experiment over pay and terms and conditions has failed. The challenge to the Opposition was: do they recognise that there is a serious problem with school support staff remuneration and contracts? If they do, what are their proposals to fix it? I would be willing to take a second intervention on that point.

[Greg Smith]

Much as the hon. Member for Chippenham said, this is about political choices. If this new Labour Government, six months in, wish to make a political choice to fund schools to pay support staff more, why do they not make that political choice and make that money available? We all want people to earn more, to get more in their pay packet and to be richer.

[Laurence Turner]

I think we have it there: the Opposition do not see this as a political priority. They chose not to take steps or to put forward meaningful proposals to raise the employment standards of school support staff. My challenge was: do they have any proposals for this group of workers, particularly in light of the Low Pay Commission decision? We have not heard an answer.

[Greg Smith]

Will the hon. Gentleman give way again?

[Laurence Turner]

It is Christmas.

[Greg Smith]

I am glad the festive spirit is alive and well, but I remind the hon. Gentleman—there is no sugar coating it for Opposition Members—that the Labour party had a thumping victory in July. There is no general election on the horizon, and there is little chance of any change of Government before 2029, so it is on the Labour party to make political choices for the next four and a half years. Will the hon. Gentleman do that, or is he just going to deflect back to the Opposition?

[Laurence Turner]

I doubt I am going to do it personally; as with all these things, it is a collective endeavour. The hon. Member asked whether the Government are going to do this, but they are doing this—it is in the Bill. I ask again: what is the Opposition’s alternative? We are yet to hear it.

It is worth reflecting on the nature of these review bodies—not that this is a pay review body; it is a negotiation body—and the way in which we establish new agreements, because these things do not happen quickly. I think that the establishment of “Agenda for Change” in the NHS took seven years from initiation to completion. That exercise took a long time, but I do not think anyone would seriously argue for going back to the plethora of terms and conditions, and the mismatch between different grades of workers, that existed before, which created serious equal pay liabilities. That is the situation that we inherit in respect of school support staff.

These things do take time. If the shadow Minister goes back to the record of the original school support staff negotiating body—from 2009 to 2010—the progress made in that relatively short time was not on establishing the new pay system, but on drawing up model role profiles and moving towards a national handbook for terms and conditions. Those measures would be hugely welcome today. In fact, the Conservative Government acknowledged that some the school support staff negotiating body had done some important work during that time. They were on record as saying that there was a clear case for carrying forward some of it, but that never happened, and we have been left with an absence in that area of policy for almost 15 years. The changes to pay will be hugely welcome when they come. It will be a negotiation, so the outcomes will be a matter for the parties represented on the negotiating body, including the Department for Education.

We must go back to the problem: schools are finding it increasingly difficult to recruit and retain skilled school support staff. A number of private sector employers, including supermarkets, are increasingly offering term-time only contracts, with the intention of attracting people out of schools and into alternative roles. Freedom of information requests show that, where data is held, teaching assistant vacancy rates run at around 10%. That is having a real impact on the ability of schools to deliver inclusive education, which is a shame.

[Nick Timothy]

On schools’ ability to deliver, my hon. Friend the Member for Bridgwater asked the hon. Gentleman a moment ago to acknowledge the significant rise in the performance of English schools in the PISA rankings and other international comparative studies. Will he clearly say whether he acknowledges or denies that rise?

[Laurence Turner]

That is a direct question. We could talk about the way the PISA rankings are constructed.

[The Chair]

Order. We are not going to talk about that; we are going to talk about the Bill.

[Laurence Turner]

That is fine—I think that applies to both the intervention and the response. A direct question had been put about whether there is an alternative proposition on pay and terms and conditions, which is the matter we are considering today. I hope we will have an opportunity to talk in much more detail about the matters the hon. Member for Bridgwater raised, but the Opposition could not answer that direct question.

It is a shame that there is not more agreement on what is a very real policy problem. We have a serious—dare I say it—road-tested proposal in the Bill to reinstate the school support staff negotiating body. I am none the wiser about what measures the Opposition propose, but it is important that the clause be part of the Bill.

[The Chair]

Order. Obviously, education matters are relevant to the context of the discussion, but this is not a debate about education policy as such.

--- Later in debate ---

[Sir Ashley Fox]

It is a pleasure to serve under your chairmanship, Mr Mundell. We are discussing clause 28 and schedule 3, and the hon. Member for Birmingham Northfield asked what the Opposition’s proposal would be. Well, nothing needs changing—the clause and schedule are completely unnecessary. I say that because it is my belief that the way the education system in England is delivered—mostly by academies—is a successful model. The Government’s proposals will harm our education system because they will take freedom away from schools and academies. There is a fixed amount to be spent on education, and the governors of schools and academies are best able to decide where those resources are allocated.

The hon. Member for Birmingham Northfield told us it was unfair that some teaching assistants have lower pay than others and that their terms and conditions are not identical. He also said it was difficult to retain and recruit teaching assistants. If that is the case, the governors of a school or the leaders of an academy can pay more to recruit the staff they need.

What we see from the Government is a belief that Whitehall knows best. They intend to centralise terms and conditions and will try to specify how much each teaching assistant in each school will work, because that suits their political agenda and the agenda of the trade unions that pay for their election campaigns.

[Laurence Turner]

Why does the hon. Gentleman’s argument against central direction-setting not apply to teachers? Is he arguing for the abolition of the School Teachers Review Body?

[Sir Ashley Fox]

Teachers are different because teaching is a profession that should certainly agree not to strike on pay and conditions, in return for the provision of the pay review bodies, which should play an integral part in ensuring that children’s education is not disrupted by industrial action. I would be happy to grant academies the freedom to pay a little more or less for scales, although perhaps that is not currently possible. I want the maximum freedom granted to academies and schools because, fundamentally, I believe they are best able to allocate the limited resources.

As my hon. Friend the Member for Mid Buckinghamshire said, if the Government really wanted to raise pay and improve conditions for teaching assistants, it is in their power to increase substantially the amount of money available for schools. They choose not to do that, but instead say that schools must stick to certain parameters on pay and conditions that will not enable schools to deliver the best education for children.

It is important that I talk briefly about the enormous improvement in educational standards for our children, which has been enabled by the freedom that academies have been granted. Clause 28 and schedule 3 start to roll back those freedoms. My fear is that this is the start of a process in which we will see educational standards in England deteriorate.

[Laurence Turner]

I thank the hon. Gentleman for giving way a second time. He describes a picture of extraordinary success. Classroom-based support staff spend the majority of their time supporting SEND learners. Does he regard the SEND system as a success?

[The Chair]

Order. We are starting to stray back into a wider debate.

Employment Rights Bill (Fourteenth sitting)

Laurence Turner Excerpts

Committee stage
Tuesday 17th December 2024 Public Bill Committees

[Greg Smith]

Some are definitely more memorable than others.

Amendment 168, tabled in my name and that of my hon. Friends on the Conservative Benches, would change the matters that are within the remit of the school support staff negotiating body in relation to academy staff, limiting it to the creation of a framework to which academy employers must have regard in all but “exceptional circumstances”. I am sure that Government Members will agree to a moderate amendment in the spirit of what they seek to do.

As I said in the debate on clause 28, which introduces schedule 3, in 2010 the then Conservative Secretary of State for Education, Michael Gove, rightly abolished the school support staff negotiating body. The Conservative Government had a clear and principled reason for that: employers should have the flexibility to set pay and conditions locally, rather than having a top-down, centralised framework imposed on them. Instead of giving employers the flexibility to do what works best for them, this Government are establishing a national terms and conditions handbook on training, career progression routes and fair pay rates for school support staff.

These things can sometimes get taken out of context, so I want to be clear: we are not advocating for a race to the bottom on pay and conditions for school support staff, but we believe that the current arrangements are working well and have allowed for innovation that is beneficial for pupils—real children up and down the land receiving their education. Our worries about the re-establishment of the school support staff negotiating body are principally that we believe that school employers must retain a degree of freedom and flexibility to recruit, develop, remunerate and deploy their staff for the benefit of the children in their community—their setting—to achieve their particular aims from a school improvement and inclusion perspective.

Children with special educational needs and disabilities rely on schools’ ability to deploy staff to meet their individual needs, and stifling innovation in staffing to meet those needs would be the greatest barrier to reforming the SEND system. In particular, ensuring that mainstream provision can meet the needs of SEND children requires, in its very essence, an innovative use of support staff resource.

As I have said in previous debates, I salute all support staff, whether they support children with SEND or other- wise. They are great assets to every school who do an enormous amount of good work for every child they work with on a daily basis—I am thinking of the example given earlier by the hon. Member for Birmingham Northfield, and the way in which they interact with and support my own children in their schools in Buckinghamshire. They are hugely important, but this is about ensuring local decision making, local flexibility and the local ability to shape what is right for children’s education, development and future life prospects.

For those reasons, we believe that the statist approach created by the Bill is fundamentally misguided, and that children, particularly those with additional needs, could be worse off because of it. All school employers operate in a competitive market to attract and retain staff. I accept that in the education world it is currently particularly difficult to recruit teachers and support staff—there is no doubt that that has been a challenge for a considerable number of years—but, particularly in relation to support staff, schools compete with other local establishments, including in the private sector, and employers in local markets. Incentives to attract and retain staff are needed.

Our concerns with the re-establishment of the school support staff negotiating body do not end there. Academy trusts sign a funding agreement with the Secretary of State that gives them certain freedoms, among which is the ability to set pay and conditions for staff. What the Government are trying to do with the Bill is therefore to unpick a clear, established and positive freedom that academy trusts have. To take that away from them would be a retrograde step. The Bill explicitly overrides that contract. As for school support staff, it states:

“Where the person is employed by the proprietor of an Academy, any provision of the Academy arrangements relating to the Academy has no effect to the extent that it makes provision that is prohibited by, or is otherwise inconsistent with, the agreement.”

His Majesty’s loyal Opposition worry that this is just the start of the Government’s longer-term mission to unwind academy freedoms, and that it shows that they fail to understand how to support educational excellence.

The data on key stage 4 performance recently released by the Department for Education shows that academies and free schools tend to perform better than other types of school. We therefore believe that it would be counterproductive to unwind one of the key tenets that has led them to where they are today. There is always room for improvement, but when things are travelling in the right direction it is foolish to put barriers up. Our amendment would change the SSSNB’s remit so as to create a framework that academies must have regard to but are not compelled to follow. That seems a reasonable compromise, and I ask the Government to consider it carefully.

In this context—we are all creatures of our own experience—I think particularly of examples from my constituency of Mid Buckinghamshire and the county of Buckinghamshire more widely. I think I brought up this example in relation to other sectors in earlier Committee sittings. Because the county of Buckinghamshire borders London boroughs, rigid pay scales make recruitment an even greater challenge, because of the London weighting issue. Many teaching assistants, school support staff and, frankly, staff in any sector—we will come to adult social care later in the Bill, and care workers are equally affected—who live in Buckinghamshire and perhaps want to work there feel compelled to go and get the extra money that the London weighting would bring by applying for a job in, say, the London boroughs of Hillingdon or Harrow. Nobody can blame them for doing that, but it creates a recruitment challenge for Buckinghamshire, Hertfordshire, Essex, Kent, Surrey and other London-bordering counties.

The amendment seeks to correct for what the Government are trying to do with schedule 3, and so to maintain the freedom that allows academies in Buckinghamshire and those other counties to dynamically adapt their pay and offering for school support staff and counter those challenges. It would mean that schools in Buckinghamshire that want to employ people who want to work in Buckinghamshire can get them on board, rather than there being a false incentive that forces people to take jobs in one of the London boroughs and secure the London weighting that goes with them. That is one practical example of why I believe that academies, and free schools for that matter, should have that core freedom and flexibility to get it right for their children.

[Laurence Turner (Birmingham Northfield) (Lab)]

It is a pleasure to serve under your chairship, Ms Vaz.

I think I am correct in saying that Buckinghamshire is one area that has opted out of the National Joint Council, so I recognise that the shadow Minister brings a particular perspective to the debate, but the final line of the amendment states that

“a prescribed matter is, or is not, to be treated as relating to 30 career progression”.

I assume that is just a typographical error, but it would be good to have that point clarified.

More widely, I do not think the amendment is necessary. In some ways, it is quite loosely worded. It seeks to put in the Bill a reference to a framework, but a framework is not defined and that would not be clarified through later regulations. Therefore, I am not sure that the wording before us would necessarily resolve the Opposition’s aim, and the meaning of “framework” is probably not something that we would want to have out in the courts.

On the wider issues, the shadow Minister said that the proposals in the Bill would overwrite the funding agreements, but part of those agreements is a requirement for academy employers to have regard to the academies handbook, which is altered as part of the normal course of public policy, so such variations are not especially new. As I say, I do not think that what is in front of us would achieve the Opposition’s aim. The reinstatement of the school support staff negotiating body was a manifesto commitment. It would be problematic to say that a manifesto commitment could not be implemented because funding agreements were already in place. It is quite proper for the Government of the day to pursue their public policy objectives in this manner.

I would like to correct the record. In the morning sitting I said that freedom of information requests had established that, where data was held, the vacancy rate for teaching assistants was 10%. The actual figure is 18%. I just wanted to put that higher number on the record.

[Nick Timothy (West Suffolk) (Con)]

I should warn the Committee that I have a frog in my throat and a bit of a cough, but I think it is known that I used to work for the former Prime Minister, Baroness May, and I have seen how to get through a speech with a cough.

The amendment is important because it seeks to protect one of the academy freedoms that have made English schools the best in the west. I say English and not British schools advisedly, because education is devolved and, in Scotland and Wales, standards have gone not forward but backward. In Wales, the average pupil reaches about the same level of attainment as the average disadvantaged pupil in England, yet it is the Welsh model that the Government seem to be intent to follow. So the amendment is all about seeking to protect the academy freedoms behind the success of the school reforms of which the Conservatives are rightly proud.

According to the programme for international student assessment—or PISA—rankings, English primary school- children are the best readers in the west. On 15-year- olds, they say that schools in England are 11th in the world in maths, up from 27th in 2009; 13th in science, up from 16th; and 13th in reading, up from 25th. That is an unqualified success story. Yet I am afraid the Education Secretary and Ministers in the current Government repeatedly claimed that standards fell under the Conservatives.

--- Later in debate ---

I can see you raising an inquisitive eyebrow, Ms Vaz, but this is a really important point to make, because the principles of academisation, and why it has worked, are the context for this discussion. Academisation was part of a painstaking programme of school reform overseen by Michael Gove, the Education Secretary in the coalition Government. Although it seems that after years of consensus between the parties about principles such as academisation, which started under the Tony Blair Government, the Labour party may be reversing its support through measures such as this Bill, I hope that the Liberal Democrats might feel able to join us in supporting the amendment.

[Laurence Turner]

The hon. Member is making an interesting argument. I am keen to tease out the evidence for the assertion that there is a relationship between the decentralisation of pay and terms and conditions, and performance. Can he explain why, then, the overwhelming majority of academies subscribe to the National Joint Council green book terms and conditions? Is that not, in fact, an argument for collective bargaining as a handmaiden to academic success?

[The Chair]

Stay within scope please, Mr Timothy.

--- Later in debate ---

[Sarah Gibson]

I appreciate the point, and the shadow Minister is quite right: I was assuming that without support there might be such a situation. However, that does not detract from the fact that in most situations, having a body that someone can go to that is independent from their employer has to be a supporting situation. Nobody would go to that body for support if they were being paid above the average in their area.

[Laurence Turner]

Is it the case—perhaps this gets to the heart of the matter—that the proposed way that the SSSNB would work is that a matter would be referred to a body, an agreement would be reached, and it would be passed back to the Secretary of State to write it into regulations? Nowhere in the Bill does it say that that would be a ceiling. If it was something that was negotiated between the parties, it would be a floor that could be improved on. There is nothing in the Bill to stop that happening.

[Sarah Gibson]

I appreciate the clarification. That makes perfect sense—it would be unlikely that a body representing employees would create a ceiling, so I cannot help feeling that that issue is not likely to come up. With that in mind, I am unable to support the amendment.

--- Later in debate ---

[Greg Smith]

Amendment 123 requires the Secretary of State to undertake an impact assessment of the costs to the education sector before making or changing arrangements related to the school support staff negotiating body. I have already spoken, probably at greater length than anybody particularly wished me to, about our reservations over the re-establishment of the body—in particular the way that it will override the traditional academy freedoms that seem to trigger Government Members so much.

I am interested in what assessment the Secretary of State has undertaken about the current arrangements for pay and conditions for support staff, and in whether the Minister can provide concrete evidence about the shortcomings and how those would be rectified by re-establishing the school support staff negotiating body. In other words, is the policy driven by evidence or by ideology? The amendment asks for the Secretary of State to come clean about the costs of the proposed arrangements, not just to the schools budget but to pupils in schools.

We had some back-and-forth earlier about how, if they are to work, the changes made by the Bill need to marry up with the real-life pay settlements and budgets made available by the Treasury. Otherwise, the net result will be that schools will have to obey the rules as set out in the Bill without getting any additional money to pay for doing so. Who will suffer if the school is asked to do that? It will be the children and pupils, because of the number of textbooks, laptops, iPads or interactive screens and boards—all the things that are used in education—that the school can buy.

[Laurence Turner]

I am trying to understand what the shadow Minister means by cost to the education sector. Does he mean the running cost of the body itself or the cost of an agreement? If he means the latter, how could that possibly be accounted for when, as we have heard, any new pay scale is likely to be some years away and would be subject to negotiation?

[Greg Smith]

The answer is, of course, both. There will be a cost to the body and a cost to the individual education establishments—the academies, free schools and so on—that still fundamentally rely on a funding settlement. One pot of money can only go so far. I accept that the body itself will be separately funded, but the pay awards that individual schools would have to make will not. If schools are being asked to swallow the cost, they will have to find it within their budgets.

I am sure that I am not alone in having visited schools—other hon. and right hon. Members will have done so in their own constituencies—where headteachers say that they have to have this debate when setting their budget every year. Over the decades, Governments of all political persuasions have given them things to deliver and rules to follow but only one pot of money, so something has to give. If they are to follow the rules, the ones who suffer are children, through the equipment and books that the school is able to purchase.

The amendment is a reasonable one. It requires one of those impact assessments, so that we can all be absolutely clear. When we vote, in whichever way, on this Bill as it passes through Committee, Report and Third Reading, as well as ping-pong with the other place, we can be really clear about what these provisions mean on the ground for real schools and real children going through their education. As I think we all accept, that is so important to their future lives.

Amendment 124 requires the annual reports of the school support staff negotiating body to include the cost of pay and conditions agreements. We believe it is important that there is transparency over the additional costs and burdens that this new body will impose on school employers. What might those costs be? Will the Department for Education appropriately compensate school employers for them? I will not repeat the arguments that I made on amendment 123, but the point is fundamentally the same. The amendments are designed to probe the Government properly on what the measure will mean in the real world.

[Laurence Turner]

I want to come back on some of the points that the shadow Minister raised. I appreciate his clarification about exactly what information the Opposition are trying to tease out with amendment 124. I hope he does not mind me saying that the cost of any future settlement agreement is speculative in nature. We heard from the Minister earlier that part of the remit that Ministers will give the body will be about affordability and the funding available at the time. It will probably be several years in the future when that new pay scale comes into force, albeit that there is some good work that the SSSNB could be getting on with in the interim that would have very low costs for the sector.

We have some information about how much the body itself would cost. An answer to a written parliamentary question in 2011 put the estimated cost saving of abolishing the SSSNB at £1.4 million over the spending review period. That was about £350,000 a year. In today’s prices, we are looking at close to half a million. That is a very small fraction of a percentage of the Department’s budget, and it is probably an overestimate given that civil service wages have not kept pace with inflation over that time. The former education spokesperson for the Labour party, Andy Burnham, who was involved in the setting up of the original SSSNB, described it as a “low-cost panel”. That is exactly what we are talking about here. I hope that that provides some reassurance that amendment 124 is not necessary.

The SSSNB produced annual reports, which were published by the Government in the normal way. The Department for Education tracks the costs of school support staff pay increases. That information is made available, including to sector representatives, through the schools and academies funding group. I hear what the shadow Minister says, but I do not think these amendments are necessary because the information is unknowable or already available, or it will be made available in the normal course of business.

[Sarah Gibson]

For similar reasons as I was concerned about previous amendments, I feel that I cannot support this amendment. I think it is unnecessary to add more complications to the system on things that are probably already covered in other areas.

--- Later in debate ---

[Sarah Gibson]

I support the schedule. Over the past 10 years, we have seen how difficult it has been to retain and employ support staff in our schools, partly because they do not see a career progression and do not see themselves valued. I hope that this body will help to support those staff and will allow them to feel that they are very much part of the education authority and so have that support.

[Laurence Turner]

We have covered a huge amount of ground in this debate, so I will restrict my remarks to a few matters that have been raised. I say to the shadow Minister that if he thought that the Minister’s summary was bureaucratic and difficult to follow, he should sit through some meetings of the National Joint Council for Local Government Services, which is the dominant mode through which pay and terms and conditions are set.

It is worth reflecting briefly on some of the practical issues in schools that can be remedied through this new approach. It is a well-known problem that schoolteachers’ and school support staff’s pay award dates are misaligned. For schoolteachers, it is September; for school support staff, it is April, with the financial year. That can be a nightmare for bursars, school business managers and large employers, who have to plan their budgets with that significant difference.

In a previous life, I sat through a working group convened by the Local Government Association through the NJC on a vexed issue: how can school support staff’s work out of term-time be calculated on a term-time-only contract, because they are accumulating annual leave but cannot take all of it during term? It was a bit like a version of this Committee that reached no conclusions and never ended. These are real problems that result from the ossification of the NJC system. It is not appropriate for school support staff workers. As we all know, when a pay and grading system becomes ossified, legal danger lurks for employers in the inconsistencies that emerge.

There is no justification for saying that TA level 2 means something completely different in neighbouring authorities. That can become a block on people’s progression and ambitions to relocate. Multi-academy trusts and other academy employers overwhelmingly remain subscribed to the NJC, because this system of pay and grading, which has grown up over decades, is labyrinthine and difficult to follow, and most academy trusts do not have the HR and payroll functions to put something new in place.

We can put some figures on this. The school workforce census carried out by the Department for Education collects data on NJC coverage compared with other pay gradings. For local authority maintained schools, 80% of school support staff are paid on NJC grades, when non-responses are excluded. For academies, the figure is 77%, so there is no huge difference between the two sectors. Even among the remainder, some staff are employed under separate agreements with Soulbury terms, so are quite separate, and a high proportion—possibly even the majority—are paid on NJC-like terms and conditions, although there might be some local improvements to those pay gradings. That is the issue that the Confederation of School Trusts raised in its written evidence, and I think it has been addressed through this Committee. We are seeking to establish a floor, not a ceiling, so local improvements can still be made where employers and trade unions agree them.

The clause takes a lot from the lessons that were learned from the previous iteration of the SSSNB, which is welcome. The clauses on the adult social care negotiating body contain a general provision that any specified matter relating to employment could be referred to that body. Proposed new section 148J is drafted a bit more tightly for the SSSNB—at least, that is my reading of it—so I wonder whether there is a case for aligning the wording for the two bodies.

Let me go back to why we are doing this. School support staff are the hidden professionals in the education system. I did not just represent school support staff; I was once a school governor in a specialist SEND setting, and there were school support staff and teaching assistants. It is important to remember that the term covers site staff, cleaners, caterers and all sorts of other workers, who often do not get talked about. Those workers make lifesaving interventions—they may have to administer medicine or perform a medical intervention that literally keeps a child alive—but they are paid about £14,000 a year. That represents a failure of central Government to account for the pay, conditions and wellbeing of all the people who work in schools. The measures we are discussing are hugely important and welcome, and it is very welcome that the Bill has been brought forward this early in the Parliament.

[Justin Madders]

I am grateful for Members’ contributions. The shadow Minister gently joshed me about the technical detail but, as my hon. Friend the Member for Birmingham Northfield pointed out, that is the nature of the beast: it is important that all eventualities are covered. We have not reinvented the wheel here; we have lifted much of what was already in place for the previous iteration of this body, and we have taken some further learnings from that.

On my hon. Friend’s points, we have not needed to take the broader powers of the adult social care body, which we will discuss shortly, because the clauses relating to the SSSNB give it a remit to negotiate terms and conditions, as well as advise on training and career progression. That is broader than its 2009 remit, and we think it covers the areas that are recognised as those that need to be included, in addition to the powers the body had in 2009. Of course, the Bill has to be detailed—it has to be right—because it will affect 800,000 people, and a lot of people in that workforce are on low pay, have poor career prospects and are frustrated at the lack of progression in their job. When setting up such a body, it is important to cover all eventualities.

This is not a novel concept, but it is an important step forward in our industrial relations in this country, and in tackling low pay and insecurity. I am proud that we are able to discuss it today.

Question put, That the schedule, as amended, be the Third schedule to the Bill.

Employment Rights Bill (Eleventh sitting)

Laurence Turner Excerpts

Committee stage
Thursday 12th December 2024 Public Bill Committees

[Greg Smith]

Amendment 155 would make the initial period of employment six months, to align with a standard probationary period. The Government have admitted that they do not have robust data on instances of dismissal for those under two years of employment; in other words, we do not know if there is even a problem with unfair dismissal that the Bill is seeking to solve. Without knowing the problem, how can the Government identify a solution or even know that one is necessary? This is a flimsy basis for enacting a measure that the Government estimate will cost businesses in excess of £40 million a year overall.

[Laurence Turner (Birmingham Northfield) (Lab)]

It is a pleasure to serve under your chairship, Ms Vaz. I draw attention to my declarations in the Register of Members’ Financial Interests and to my membership of the GMB and Unite trade unions.

Before we move past the hon. Gentleman’s point about information, which we have talked about a lot, is the core problem not that there is a wider issue with UK labour market statistics? We heard during the evidence sessions from the Resolution Foundation, which said:

“The Office for National Statistics’ labour force survey is in the doldrums”.––[Official Report, Employment Rights Public Bill Committee, 28 November 2024; c. 119, Q125.]

This is not a party political point. The ONS’s collection methods, which broadly worked until the pandemic, have not worked subsequently. The statistics body is going through a period of transforming the labour force survey, but the criticisms that the hon. Gentleman makes of the information available to this Government would have held true for the Government between 2020 and 2024. This is a much wider issue. We could look at that problem and say, “We didn’t even really know what the UK unemployment rate was for some time,” and if that was an absolute barrier, all employment legislation would be on hold. It is important that those practical challenges are acknowledged.

[Greg Smith]

I do not disagree with what the hon. Gentleman says, but where we do disagree is on the conclusions that we draw from that. I would strongly argue that to introduce primary legislation without an adequate evidence base is foolish, whereas he seems to be arguing that it is fine to do that.

I fundamentally agree with the hon. Gentleman that there is often a problem with data collection, particularly on complex things such as overall employment numbers, the number of people in multiple jobs or whatever. He certainly hit the nail on the head about the post-pandemic understanding of the labour market. The pandemic brought about almost a fundamental reset in a lot of working patterns; nobody seems to work quite in the same way as they did before the pandemic. I acknowledge his point, but I suggest that this was actually the time to take a bit of a pause and a step back to think through new measures more carefully, rather than to rush ahead with a Bill in order to publish it within 100 days of the Government’s taking office.

I return to my questions to the Minister. What estimate has he made of the additional cost to business, including salary costs during performance management or disputes, retention costs from tribunal risk aversion, and increased settlements offered to avoid legal claims? Are those costs worth it for a problem that, as we have just discussed, nobody can actually prove exists in the UK market right now?

--- Later in debate ---

[Michael Wheeler (Worsley and Eccles) (Lab)]

As ever, it is an absolute pleasure to serve under your chairmanship, Ms Vaz. As usual, I draw the Committee’s attention to my declaration in the Register of Members’ Financial Interests, and particularly to my membership of the USDAW and GMB trade unions.

I am sure it will not surprise the hon. Member for Dundee Central to hear that I share some of his concerns about the practice of fire and rehire, and I welcome the significant steps taken in the Bill to outlaw the practice. However, I disagree with his amendment 160. What might be seen by some as a loophole is actually an important safeguard against the perverse potential for the law to mandate redundancy when there might have been other options on the table. I am sure that none of us would want to be party to including that in the Bill.

As I said, I share some of the hon. Gentleman’s concerns, and I hope the Minister will look closely at proposed new section 104I(4) of the 1996 Act, because the words

“likely in the immediate future”

are doing some precariously heavy lifting. However, if the amendment were accepted, the focus on a business being a going concern, which is the most important part of that subsection, would be removed completely. When we are passing legislation that protects jobs and promotes good employment, we absolutely cannot allow the unintended consequence of mandating redundancy when there are other options.

I look forward to the Minister’s comments. I understand the concerns of the hon. Member for Dundee Central, but this is a sledgehammer of an amendment to crack a nut of a possible loophole, with significant potential consequences.

[Laurence Turner]

Like my hon. Friend, I have intense sympathy with many of the arguments put forward by the hon. Member for Dundee Central, but the “Make Work Pay” document published earlier this year, which was subsequently endorsed in the Labour manifesto, stated:

“It is important that businesses can restructure to remain viable, to preserve their workforce and the company when there is genuinely no alternative, but this must follow a proper process based on dialogue and common understanding between employers and workers.”

We all want to see both parts of that carried through, and I look forward to the Minister’s comments on that. If amendment 160 were accepted, would it not have the effect of invalidating that part of the Government’s manifesto commitment?

Employment Rights Bill (Twelfth sitting)

Laurence Turner Excerpts

Committee stage
Thursday 12th December 2024 Public Bill Committees

[Greg Smith]

I understand the point that the hon. Gentleman makes. He is right that the businesses in the situation he describes would have to go through a legal process, probably involving very expensive contract lawyers, to alter such a contract. I do not think it is helpful to directly compare those supply chain contracts with employment contracts, because on one level we are dealing with human beings and on the other we are dealing with the flow of parts, services or whatever.

The hon. Gentleman is also right that a change in terms and conditions can sometimes be very positive for the employee. Perhaps it involves fewer hours for more money—that sometimes happens—or longer holidays. Of course, if something better is being offered, employees should have the flexibility to accept that, having exercised due diligence and looked it over properly—dotted the i’s, crossed the t’s and all that. What I am trying to get at is where the business model, and the day-to-day operation of the job, has fundamentally changed, through robotics or whatever.

[Laurence Turner (Birmingham Northfield) (Lab)]

I want to continue on the shadow Minister’s theme of milk. It used to be common in factories where there were particulates in the air to include a clause in someone’s contract that said they were entitled to a glass of milk during the day, because it was believed at the time that a glass of milk would remove those particulates from someone’s airway. It was completely misguided, but those contracts still exist, and I have been in situations where I have looked over similar, very outdated terms and conditions. If it is raining on a site, someone might be entitled to a 2p payment, for example. Such contract conditions are very easy to remove; it can be done by agreement.

Does the shadow Minister accept that if a contract is worded appropriately, such variations can be made by an employer—the key factor is whether there has been genuine consultation—and that the circumstances that clause 22 will remedy are really quite separate? It is for those extreme examples that Grant Shapps, the Conservative Business Secretary at the time, spoke out against.

[Greg Smith]

I am grateful to the hon. Gentleman, although he was possibly milking it with the length of that intervention—[Hon. Members: “Oh!”] It is nearly Christmas.

I accept the hon. Gentleman’s points about some of those very outdated provisions. I really hope that my children do not find a job out there that involves free milk, because they might jump at it a little too quickly. This probing amendment seeks simply to understand a little further where the flexibilities lie, and to get underneath some of the detail around when a variation of contract might be a good thing on both sides, or when things have just changed and there needs to be a variation in order for the jobs to be saved. I would hope that Members on both sides of the Committee would come at this from the perspective of the real world and wanting to save jobs, create more jobs, grow the economy and grow employment.

There may be legitimate reasons for wanting to vary terms and conditions, such as to provide for improved employment practices, or to update and reform outdated working practices—as the hon. Member for Birmingham Northfield referenced—in order to allow for the more effective running of a business or organisation. The amendment seeks to understand the Government’s position should such a situation arise, and to understand why they are legislating to prevent businesses from acting in such a way.

--- Later in debate ---

[Greg Smith]

Most of my concerns have been outlined in the amendments to the clause, but I want to ensure that it is placed on the record that the Opposition want to see employers engage in good faith and believe that most employers do. I accept the Minister’s point about the scandal of P&O Ferries—I was on the Transport Committee at the time, so possibly looked into it in more detail than most colleagues from the previous Parliament.

Where we perhaps still have a difference is that taking that unacceptable, scandalous situation at P&O and legislating for everybody on the back of it is not necessarily the best starting place. As I said in the previous debate, working on the presumption that all businesses are trying to exploit their workforces is not healthy or, I would suggest, reflective of the real world. Although there have to be measures to shut down things like what happened at P&O so that it does not happen again, there must equally be flexibility and understanding so that, when employers have engaged in good faith and really are trying to save the business—to save the jobs in the first place—we do not find ourselves in that nightmare scenario of people saying, “It’s too difficult—we’ll just have to make everyone redundant.”

I fully accept that this clause will pass in a few moments, but perhaps the Minister could consider, before we come to Report, some additional safeguards on that so that we do not end up with job losses and employers slamming their heads down on the desk, unable to find another way to save the jobs and the workforce. That would keep giving people the living they need to get on and prosper as part of our country, part of the business they are engaged in and part of our vibrant UK economy.

[Laurence Turner]

I will not speak for long, because most of the points have been made in the debate, but I want to come back to the point made by the shadow Minister and the hon. Member for Bridgwater. There is perhaps a legitimate difference in principle between the two sides: when there are extreme examples, should there or should there not be legislation in response? It is important to respond to that, because we have seen extreme examples of abuse across different parts of the labour market. To go back to the example of blacklisting, I suggest that that was a failure of successive Parliaments to tackle a practice that had been thought to be relatively rare, but proved to have been carried out on an industrial scale. It was right for Parliament to enact the blacklisting regulations.

I go back, too, to the Grunwick dispute, the ancestor of the statutory recognition regime. At the time, it was thought that the abusive patterns of employment behaviour on full display in that particular employer would be unlikely to recur. The Government of the day commissioned a public inquiry under Lord Scarman in the belief that, if the inquiry concluded that there should be trade union recognition, it was inconceivable that any employer would not abide by that—but that is exactly what happened.

Where we see those extreme abuses, other employers—by no means the majority, or even a substantial minority, but enough to have a seriously deleterious effect on the lives of many workers—will follow. Since P&O, we have seen other examples; hon. Members have referred to particular employers and sectors, and I could add parts of the retail, utilities and even the public sector, where such tactics have become more common. The previous Government made strong statements—I could quote some—about the practice, but I suggest that the action that was subsequently taken, the code of practice, was not sufficiently strong. In the case of P&O, where the employer made it clear at the time that it intended to ignore the existing legislation, it did not prove sufficient remedy.

We do need stronger action. The measures in the Bill will only ever affect a tiny minority of employers. It is important to stress that, but it is necessary to put this action into the Bill. P&O will always loom large in discussions of this topic, but the practice is by no means confined to that particular employer, and it is right to take the action that was not taken in the previous Parliament.

Employment Rights Bill (Seventh sitting)

Laurence Turner Excerpts

Committee stage
Thursday 5th December 2024 Public Bill Committees

[Greg Smith (Mid Buckinghamshire) (Con)]

It is a pleasure to serve under your chairmanship, Mr Mundell. I am grateful to the Minister for his explanation of Government amendment 30, but I gently suggest to him that starting by saying that he wished to be clear, and then going on to say that the Government will be consulting on it, possibly does not give businesses the clarity that they are seeking from this clause of the Bill. I would be grateful, when the Minister sums up the debate on Government amendment 30, if he could actually clarify what he believes, in plain English, to be reasonable notice, and, while not necessarily when future regulations will be laid, the window in which they will be consulted on.

I posed a similar question about an amendment in our sitting on Tuesday. I cannot imagine that the Government will want to simply put out a blank piece of paper consultation—there will be a floor and a ceiling that is consulted on. It would be helpful for all Members, but more importantly real businesses out there in the country, to understand that as soon as possible, so that they can most fully share their thoughts formally when the consultation launches. Can the Minister give the Committee any clue about what employers will need to comply with, or was Allen Simpson, CEO of UKHospitality, right when he said that he understood that

“the Government are intending to leave it to case law and employment tribunal systems to figure out what ‘reasonable notice’ means”?––[Official Report, Employment Rights Public Bill Committee, 26 November 2024; c. 43, Q39.]

We will shortly come on to debate Government amendment 31, which is relevant to this discussion.

[Laurence Turner (Birmingham Northfield) (Lab)]

Will the hon. Member give way?

[Greg Smith]

I will just finish this point. As the hon. Gentleman knows, I am not shy of taking interventions.

Government amendment 31 will cap the compensation an employee can receive if the employer does not give reasonable notice of cancellation or curtailment of a shift to the remuneration they would have gained if they had worked those hours.

[Laurence Turner]

I draw attention to my declaration in the register of members’ interests and my membership of the Unite and GMB trade unions.

We will of course see the consultation on the definition of reasonable notice in due course. Does the hon. Member accept that the meaning of reasonableness will be dependent on the circumstances of each case? What is reasonable in the case of, say, an early years setting might be quite different to that for an offshore oil rig.

[Greg Smith]

The hon. Gentleman makes a perfectly sensible point. We will come on to that issue shortly. The central point that I ask the Government to reflect on, before any consultation—post-legislation or during the passage of legislation—goes live, is that it is reasonable that those who are expected to put in meaningful and thoughtful contributions to that consultation on how the measures will affect them, will be applied in the real world and will need to be complied with, have as much notice as possible, so that they can put their thinking caps on and, if necessary, bring in professional advice where that is practicable or affordable.

In that way, when the Minister ultimately has the opportunity to read through every single consultation response with, I am sure, great attention to detail, before coming to a recommendation and drafting the necessary statutory instrument to bring about the exact regulations, the detail will be there. This should not be a rush job, but something to which the people out there in our country who actually run businesses, risk their capital and fundamentally create jobs and employ people are able to give as much thought as possible, so that the Government can come to a proper conclusion.

While I am glad that remuneration will be capped, I am still worried that the provisions in the Bill are not necessarily as proportionate as they could be for businesses. Sometimes an employer will have to cancel or curtail shifts through no fault of their own. We went through that issue at length on Tuesday, on a different point. I will not repeat the arguments now, other than to remind the Committee of force majeure. Events outside any employer’s control can happen; that is a reality of life.

It seems unfair in those instances that employers should have to bear the costs of not being able to complete the work on time, as well as having to remunerate employees for hours not worked. I stress, as I said on Tuesday, that that will be a minority of cases. It will be the exception, not the norm, but it is vital, when looking at this amendment and clause that there is an acceptance that those rare cases can and unfortunately will happen in the real world.

--- Later in debate ---

[Justin Madders]

The amendments relate to detriment claims only, whereas the shadow Minister’s question is a slightly broader one. The point about compensation in other situations would be far more detailed. As this is about people on irregular contracts who may have suffered a detriment that we cannot possibly predict in advance, it is normal to say at this stage that the usual principles of the just and equitable compensation that an employment tribunal would award will apply in those circumstances.

[Laurence Turner]

Does the Minister agree that if a cap of some sort were introduced, there would be a risk that, as we have seen in other cases, people who have been subject to a detriment may seek other routes, particularly under equalities legislation where damages are uncapped? That is an existing problem that has added to the strain in that part of the employment tribunal system.

[Justin Madders]

There is a danger that we will get too prescriptive about this. There will be a relatively small number of cases in which there is detriment, but they are all going to be very fact-sensitive. That is why we have framed the amendment in this way.

Employment Rights Bill (Eighth sitting)

Laurence Turner Excerpts

Committee stage
Thursday 5th December 2024 Public Bill Committees

The Bill needs significantly more surgery and more reflection from the Government to create that clarity and that certainty, at least for the consultations that have been proposed for so many parts of the schedule, during the window in which the Government will consult in depth. The Opposition feel that before we can support the Bill, it needs to go back to the Department and the drafters and come back with certainty on the direction that the Government want to take in so many areas in the schedule.

[Laurence Turner (Birmingham Northfield) (Lab)]

Does the hon. Gentleman accept that if the Bill were to go back to the Department as he suggests, the period in which changes to employment legislation are considered by Parliament would be extended and the uncertainty of which he speaks would be prolonged? Does he further accept that one of the business community’s key requests was for ongoing consultation as the Bill makes its way through its parliamentary stages, and that if we were to take the action he suggests, the Government would be breaking that commitment to business that business has asked for?

[Greg Smith]

I understand the hon. Gentleman’s point, but I believe that it was the Deputy Prime Minister who, in the media over the weekend, could not name a single business that supports the Bill. I will gladly take another intervention from the hon. Gentleman if he can name a single business that supports the Bill. [Interruption.] Not an umbrella body, but an actual business.

[Laurence Turner]

We heard from the Co-op, in the evidence sessions that we all attended last week, that that support is there. Off the top of my head, I would add Octopus and Centrica, two examples of very significant businesses that have welcomed provisions in the Bill.

--- Later in debate ---

[Greg Smith]

I beg to move amendment 136, in clause 7, page 25, line 5, at end insert—

“(1AZA) But where the employer is—

(a) the Security Service;

(b) the Secret Intelligence Service, or

(c) the Government Communication Headquarters,

the test of reasonableness in subsection (2)(b)(ii) does not apply, and the notification under subsection 1(aa) need not explain why the employer considers that it is reasonable to refuse the application on that ground or those grounds.”

This amendment would exclude the security services from the Bill’s provisions on flexible working.

Amendment 136 is essentially a probing amendment—I make that clear from the outset—but one that should go to the nub of exactly where the Government want to go with this measure, not least bearing in mind the Minister’s comments at the end of the last debate about ensuring that everybody falls under the same set of rules. There may be organisations where it is impractical for their employees to be under the same set of rules. The amendment seeks to probe the matter of exempting those working in the security services from clause 7. We define the security services as MI5, GCHQ and the Secret Intelligence Service.

The Regulatory Policy Committee has explained that the Government have not proved that the measures on flexible working are necessary or undertaken any proper assessment of the costs to business. We therefore want to probe the Government’s thinking on how the provisions might apply in practice. There may be certain occupations, such as the security services, where it is harder for the employer to agree requests for flexible working. I am sure that everyone can see the practical realities and the potential consequences for national security and the safety of everyone in our great United Kingdom if the security services were to suddenly have flexible working arrangements.

Has the Minister given any consideration to which sectors may find these provisions either more difficult or completely impractical to comply with? The amendment takes the example of the security services, where irregular hours are worked. I am sure that hon. Members can think of other occupations, such as policing—and perhaps ours, if I may be so bold, Sir Christopher—where irregular hours are more than commonplace.

We would like to understand how the provisions of the Bill will apply to the security services and to understand the Minister’s thinking as to why. That is the critical question in politics—my early mentor in politics, the late, great Eric Forth, was clear that it is the only question that matters in politics—so I put it to the Minister. We want to understand the balance between the right to request flexible working and public protection. Again, I do not believe that any Member of this House wants to undermine public protection and the safety of our nation. The first duty of Government is the defence of the realm and the security of its citizens.

The security services will not be the only profession that might find the requirements difficult to administer. Will the Minister let us know, when he responds to what I repeat is a probing amendment, where the Government stand? What is his assessment of those areas that simply will not be able to comply with the provisions of the Bill? What safeguards will the Government put in place for them? We seek to understand the practicalities of the requirements that the Government are seeking to impose.

[Laurence Turner]

It is a pleasure to serve under your exemplary chairmanship, Sir Christopher.

Before I get into the clause, may I say that I enjoyed my discussion with the shadow Minister about the Northfield constituency? I am half tempted to cite my great grandparents, who were confectioners and newsagents, to burnish my small business credentials, but some on the Labour Benches can do it better. I appreciate that he said that the amendment is probing and that he is taking a particularly unique case in order to test the limits of the Bill.

Focusing on the words of the amendment rather than on the wider issues, because it is the words that matter, it is important to look at the history of employment rights as they relate to the intelligence services, because this is an area that was tested in the 1980s and 1990s in particular. The consequences of not extending these rights to the intelligence services speak to the argument against making the amendment.

For those of us who come from a trade union background, there is an uncomfortable reminder of the ban on trade union activity at GCHQ in the 1980s, which led to a number of skilled professionals leaving the employment of that service. It is important to remember the 14 trade unionists who were sacked because they did not give up their trade union membership. Many of them were re-employed 13 years later, because they still had their skills, which were in high demand.

The shadow Minister talked about the unique nature of flexible working in the intelligence services. I suspect that employees of those services have flexible working arrangements that are hard for any of us on the Committee to imagine, but when employees of the intelligence services did not have recourse to most of the normal procedures of employment law, it was an acknowledged problem that dissatisfaction among employees of the services in itself became a security risk. Some hon. Members may recall that there were a number of very high-profile cases of dissatisfied members of those services who went on the public record in breach of the Official Secrets Act. In some cases, that was attributed to dissatisfaction with employment situations. I can do no better than quote from the Intelligence and Security Committee’s annual report of 1997-98. At that time, the Committee was chaired by Baron King of Bridgwater, the predecessor of one of the Conservative Members who tabled the amendment. It stated:

“The Committee also believes that everything possible should be done to ensure that employees of the Agencies have the same rights as employees elsewhere.”

--- Later in debate ---

[Nick Timothy]

The hon. Gentleman is making a powerful case for the universalism, or near-universalism, of employment rights and presumably, within that, trade union rights. The power to withdraw one’s labour is a very important part of modern employment practice. We are talking about the three security and intelligence agencies listed by my hon. Friend the Member for Mid Buckinghamshire, but I want to give the hon. Gentleman an opportunity to give his view about the universalism of these rights, including the right of the police, for example, to join a union and to strike.

[Laurence Turner]

I am grateful to the hon. Member for raising that point. It is a shame that our Liberal Democrat colleagues are not able to join us, because we could have an interesting discussion about the consequences of the 1919 police strike, and the promises that Lloyd George made and subsequently broke, which led to the creation of the Police Federation rather than an independent trade union, but I will not detain the Committee on that matter. I will just say that we are operating under the international framework for employment law, which sets out very clearly that there are exemptions to the normal right of freedom of association—let us call it what it is—and that includes industrial action. I do not think that the Bill is the right place to diverge from that international framework.

I had reached the end of my points. As I say, there are good national security reasons for rejecting the amendment.

[Michael Wheeler (Worsley and Eccles) (Lab)]

It is, as ever, a pleasure to serve under your chairmanship, Sir Christopher. As this is my first time speaking today, I draw everyone’s attention to my declaration in the Register of Members’ Financial Interests and my trade union memberships. I want to pick up very slightly on some of the points made by my hon. Friend the Member for Birmingham Northfield.

I fully appreciate that we are talking about a probing amendment. I will not revisit my use of the word “ridiculous” on Tuesday—we stayed in that territory for long enough—but the shadow Minister perhaps underestimates the ability of different sectors to accommodate flexible working and to overcome the challenges that he believes the flexible working measures in the Bill might present. In fact, GCHQ already operates a flexible working policy. On its website it is proud to point out that

“Work-life balance is important to us”

and that its

“flexible working patterns…are designed to help work fit… alongside…personal lives.”

If anything, exclusions for entire services sectors would be a retrograde step in places where flexible working provisions are already working perfectly well.

Moving on to the broader point, as demonstrated, I believe that sectors, businesses and employers can cope with this change. There are adequate measures for reasonableness in the Bill. Access to flexible working is an incredibly important right for workers in a modern, evolving workplace. Measures such as these gear the world of work for the future by enabling people to enter the workforce and to stay in it—something that the shadow Minister has expressed a concern about. Anything like this amendment that would exclude sectors, groups or organisations wholesale feels unnecessary, especially in the light of how the measures would work in practice.

--- Later in debate ---

[Greg Smith]

The Opposition are not against flexible working; as I said, we actually legislated for it in the previous Parliament. We can see the benefits of it, as we discussed this morning, for anyone with childcare responsibilities—I count myself and my wife in that; I do not think it is quite a declarable interest—a caring responsibility or a need to have those flexible hours.

We fully recognise and accept the challenges around the nuts and bolts of the details proposed in this legislation, but I gently put it to the hon. Lady that it is our job, as His Majesty’s loyal Opposition, to road-test any legislation that the Government bring forward, which is what we are seeking to do. We are not against flexible working, but we are focused on the potential unintended consequences, the potential cost to business and the potential cost to jobs in the overall workforce, as I argued in a debate on an amendment this morning.

If employers do not have confidence—if they think that something will go wrong or that it will lead to countless days and months in employment tribunals—they may not make those hires in the first place, and then everyone and the whole economy will suffer. Opposition Members cannot stand by and not challenge or test that to ensure that the Government have got it right. To return to what I was saying before the intervention, for SMEs, the opportunity cost of their chief executive officer or another senior director spending time on employment tribunals is also considerable.

New clause 26 in my name and the name of my hon. Friends merely gives the Government an opportunity to do their homework and test whether the provision will work. We do not believe that they should casually pile more regulation on to business without knowing whether these specific measures—the detailed measures in the Bill—are actually needed to achieve their objectives.

We are asking the Government to consult on the impact of the measure and to report on it, and for the House of Commons to approve that report before the measure comes into force. Given the RPC’s verdict on the Bill’s impact assessments, business would find it reassuring if the impact assessment could be done and placed before the House so that we could study it and debate it, and so that Members on both sides of the House—Government Back Benchers and Opposition Back Benchers, as well as those in the smaller parties—can fully understand it. We believe that it is important for the Government to have to come back again for the approval of the House before the measure comes into effect.

[Laurence Turner]

The hon. Gentleman seems to be looking for statistical evidence about employers unreasonably refusing flexible working requests. I must say that it is a shame that the workplace employment relations study was last carried out in 2011. The Government at the time declined to repeat the exercise; had they not, we might have the information in front of us that he is looking for.

Does the hon. Gentleman accept that there are precedents—blacklisting, for example—in which there were widespread but anecdotal reports that the practice was occurring? It was difficult to prove, and on that basis, the regulations on blacklisting were not enacted. Then, lo and behold, it became apparent years later that the practice was not just widespread but had been carried out on an industrial scale. Had the measures been put in place at the time, many lives would have been left unbroken.

[Greg Smith]

I will take on the chin the hon. Gentleman’s point about the 2011 dataset, which was published under the coalition Government, led by my noble friend Lord Cameron. The current Government is seeking to make this legislation, however, so the onus is on them—right here, right now—to provide the datasets, evidence, proper analysis and impact assessments for the legislation that they are putting before the House of Commons and, later, the House of Lords in this Session of this Parliament. I hope the hon. Gentleman accepts the good will with which that comment is made—it is not a political attack. It is the duty of any Government at any time, as they seek to legislate on any matter, to provide the impact assessments, the real data and the real-world evidence of why it is necessary to put that legislation in place.

As I said earlier, it is simply a case of asking the Government to do their homework properly, and to provide, not just to Parliament but to businesses and employees up and down the land, the basis for which they are seeking to change our statute book.

--- Later in debate ---

[Chris Law (Dundee Central) (SNP)]

It is good to see you in your place, Sir Christopher. I will speak to an amendment on this issue shortly, but I will briefly say that everyone in this room, at some point in their working life, will be ill. It is not something that we would choose or desire, and most of us want to get back to work as soon as possible. The problem is that it happens, and when we are off ill we still have bills to pay, families to keep and mortgages or rents to pay. The level of statutory sick pay is frankly woeful in this country—in fact, for those hon. Members who do not know, it is the worst in the developed world. We should all be ashamed of that and we need to really think about it.

I welcome the changes to ensure that everybody gets statutory sick pay, but I find it disgraceful that we have not even touched on its level: it is £116 a week, or £6,000 a year. At some point in our lives, all of us have worked in very low-paid jobs. We have all done that, particularly in the early years. We would never imagine that somebody could live on £6,000 a year. Not everybody is expected to be off for a year, but some are, due to prolonged illnesses.

I will talk about this issue more on my amendment, but before I go into it in detail, I really want to hear from the Minister what changes the Government look to make so that we are no longer the sickest country in the world for being unreasonable, unfair and unjust to employees, and to ensure that statutory sick pay, which is about 17% of the average income—it was 35% when it was introduced—will start to restore the proper justice required for employees.

[Laurence Turner]

The shadow Minister’s comments to the effect that he accepted in practice the arguments on the workplace and presenteeism were welcome. If, through this Committee, we can reach some degree of cross-party consensus on the issue, it would be a real advance and proof of the value of this process. I mean that sincerely.

I turn to the measures. The question of waiting days is as old as the national insurance system. Although many of the incremental changes made in the Bill are welcome, it is time to take a step forward. The case for that step was proven during the pandemic. The Minister quoted USDAW research, and I am obliged to quote GMB research, which found that 90% of care workers could not afford to take time off if they became ill. That meant that during the pandemic, many people were presenting at work either for the duration of their illness or for the waiting period, and we have very good evidence of that. I will quote one example. A study by Dr Laura Shallcross and other authors in The Lancet found that the odds of covid infection in care home residents and staff and of large outbreaks

“were significantly lower in LTCFs”—

long-term care facilities—

“that paid staff statutory sick pay compared with those that did not.”

That was one of the key determinants or predictors of where outbreaks might occur.

To perhaps quote a more human voice, a social worker and member of the GMB said:

“For me, being on a zero-hours contract, I don’t always get work. If I become ill, I don’t get paid. If I get a cold or flu-related illness, I am expected to stay at home without pay, because I may pass the illness on to our service users. It is a very, very stressful life.”

When the Chartered Institute of Payroll Professionals surveyed its members, 47% agreed with the abolition of the waiting days period, so there is support in this area among private sector practitioners. When the Fabian Society, of which I declare I am a member, looked at this question, it found that the cost to business of adopting that measure would be very low—somewhere in the region of £15 per year for each employee.

As matters of cost have been raised in Committee on several occasions, I shall finish by quoting from the 2010 Black review, commissioned by the then incoming Government, which I think is still the best evidence we have of the cost of the statutory sick pay regime. It said:

“Great Britain has a mixed approach to sickness absence. Although employers in theory bear the cost of Statutory Sick Pay (SSP), the cost itself is not very high. Barriers to dismissal are relatively low (although it should be noted that dismissing someone specifically to avoid paying SSP is illegal). Employers are therefore obliged to bear little cost or accountability for sickness absence, albeit many employers choose to pay more in occupational sick pay (OSP) than the statutory obligation.”

There are many cases where occupational sick pay is paid at a rate higher than the SSP rate. That is of course welcome, and accounts for the majority of employers. For those employers who are being brought into paying SSP earlier, as we have heard, the cost is low, but the changes could make a really significant difference to the lives of some of the lowest paid workers in the economy. This measure is extremely welcome.

Employment Rights Bill (Fifth sitting)

Laurence Turner Excerpts

Committee stage
Tuesday 3rd December 2024 Public Bill Committees

[Laurence Turner (Birmingham Northfield) (Lab)]

I again draw attention to my declarations in the Register of Members’ Financial Interests and my membership of the Unite and GMB trade unions.

Does the shadow Minister recognise that the prominent case of the Presidents Club harassment, which was exposed by the Financial Times some years ago, did apply to an employer that employed fewer than 500 people? That was specifically in respect of sexual harassment. The House has accepted the principle that measures should be put in place to prevent third-party sexual harassment; it did so last year, through the private Member’s Bill process—including for the SMEs that the shadow Minister refers to. The most famous case on third-party harassment was the Bernard Manning case in 1996, which covered racial harassment; and recent tribunal judgments, including in 2019, have exposed gaps in the law. So does the shadow Minister recognise that there are important proven cases of third-party harassment that go beyond the current legal framework, that would be remedied by the provisions in the Bill?

[Greg Smith]

I am grateful to the hon. Gentleman. I will not seek to mislead the Committee by saying that I am across the Presidents Club case, but I am aware of the Manning case. Undoubtedly there are holes in the law, because harassment does take place in workplaces and outside workplaces up and down the land. Conservative Members categorically want that stamped out and want those guilty of those offences to face justice. However, as we go through the Bill line by line, we need to ask ourselves, “Does this proposal work, or are there other laws—criminal laws if necessary—to ensure that the authorities have the absolute ability to bring such prosecutions and ensure that those guilty of these horrible crimes are brought to justice?”

Amendments 141 and 142 are part of the set of amendments around ensuring that SMEs are not given undue burdens. These are about excluding employers with fewer than 500 employees from the removal of the qualifying period for the right not to be unfairly dismissed. RPC, which has had a lot to say about the Bill, has said that the day one unfair dismissal rights are estimated to cost businesses around £43.2 million per year.

--- Later in debate ---

[Greg Smith]

I am grateful to my hon. Friend for that input. He is absolutely right, and his argument hits the nail on the head. The point we are trying to get across through the amendments in my name and that of my hon. Friends in Committee is that small businesses sometimes just do not have the resource to go through the heavy, burdensome regulations that big businesses can navigate. Mega-businesses probably have more employees in their HR or legal department than most small businesses have altogether.

[Laurence Turner]

I am grateful to the shadow Minister for giving way; he has been generous with his time. On the point about perverse incentives, does he accept that if this group of amendments were in force, it would create a perverse incentive for the creation of umbrella companies and other forms of employment law evasion? If we are to enforce the provisions that we seek to pass in the Bill, instead of introducing a new dimension to employment law through the exemptions that he proposes, the only way to do that is to have a consistent approach across employers.

[Greg Smith]

I understand the hon. Gentleman’s point about umbrella companies. He almost tempts me to get on to one of my hobby horses, which is IR35, but that would be way out of scope, so I promise not to go there.

My principal point is that there are always unintended consequences. And yes, in some respects, while acknowledging the reality of the contribution that small businesses make to our economy and their ability to meet a heavy regulatory demand, there may have to be other steps around that to prevent the further perverse incentives that the hon. Gentleman mentions. But I come back to my central argument: if we clobber small businesses down, there will be fewer jobs, and small businesses will not be growing, which means that the whole UK economy is not growing. His Government purport to want to see the economy grow. The Budget flew in the face of that, but, if we take as read the desire of all Members to see a growing economy in the United Kingdom, we cannot have that without small business, medium-sized enterprises or, frankly, the self-employed.

Let us not forget that, as we came out of the 2008 crash and through the coalition years, a huge part of economic growth came from the growth of self-employment, which led to those self-employed registering as companies, growing and—many of them—being a huge success story. If the Bill has the unintended consequence of reducing the incentive for entrepreneurs to set up on their own, start a business and employ people, that is a very unhappy place to be.

--- Later in debate ---

[Sarah Gibson]

As I have stated, I am concerned for small businesses and have spoken to many across my constituency of Chippenham that are extremely concerned about the cumulative effects of these measures on businesses without an HR department and about the huge cost they will impose. However, although I welcome the amendment, I am seriously concerned that if we create a system in which the rights of those who work for small businesses are curtailed, that will affect their ability to take on extra staff.

I feel as though I could have supported the amendment if it had been drafted for seriously small businesses, rather than SMEs of up to 500 employees. I struggle to think of a firm in my constituency with that many employees that does not have an HR department, because they would be struggling as a single employer—I used to struggle as the HR department of my own business with 15 employees. If the number of employees in the amendment could be brought down to around 20, it would be much more acceptable to those kinds of small businesses, but as it is, I would find it difficult to support.

[Laurence Turner]

I rise to make two brief points that have not been made in this debate. The first, which is narrow, is that we already have a legal definition of SMEs under the Companies Acts 2006, which defines the upper limit as 249 employees. I acknowledge that the previous Government’s position was to extend to new regulations the higher thresholds that those on the shadow Front Bench are seeking to put forward through these amendments. I am happy to be corrected, but I do not believe that any legislation incorporating that position was subsequently carried. There is a serious point here. These may be probing amendments—we will find out shortly—but this process is not the right point to introduce a new legal definition.

--- Later in debate ---

[Laurence Turner]

My personal view is that they should not be accepted, but the hon. Gentleman surely knows that he should not seek an opinion on the party position from a Back-Bench MP.

My second point is on the sectors that would be affected by the amendments. My hon. Friend the Member for Gloucester made an incredibly powerful contribution, which we all thank him for having the courage to make, about his experience in the hospitality industry. I want to talk about the social care sector, and it is important to remember that one in three workers on a zero-hours contract in England works in adult social care.

In a former life, I spent many hours going through the corporate structures of social care employers, and their accounts and other filings. It is commonplace for an individual care home to be constituted as an individual employer, even though they ultimately all share a common ownership structure, so what appears to be a small business is often not one. During the pandemic, there was a complex interaction between care workers on zero-hours contracts and a lack of access to statutory sick pay, and there was a direct link between SSP coverage and high rates of infection, and indeed deaths, in those homes among both workers and residents.

The measures in the Bill will make real progress. Going back to points that have been covered already, I fear that this group of amendments will have serious unintended and perverse consequences, and I encourage Members to vote against it.

[Justin Madders]

I congratulate the shadow Minister on tabling the amendments and on the measured way in which he presented them. However, it will not come as any surprise to him to hear that we will not be able to support any of them.

The intention of amendment 137—or amended amendment 137—is to exclude SMEs from the provisions in clauses 1, 2 and 3. As we understand it, the additional amendments would commit the Government to exempting employers with fewer than 500 employees from measures designed to improve access to flexible working, from their obligations not to permit the harassment of their employees by third parties, from unfair dismissal provisions and from the measure designed to stop unscrupulous fire and rehire practices.

I understand that the general thrust of the shadow Minister’s argument was about the impact on SMEs and the lack of an evidence base for some of the policies. The general response has to be that we will not accept a two-tier system of employment rights in this country. We believe that everyone should have the same rights and protections in the workplace, and that is fundamental to our principles.

I will address some of the specific points. The shadow Minister mentioned the RPC’s criticism of our proposals on zero-hours contracts. There is legion evidence about the impact of those contracts on individuals. I am grateful to my hon. Friend the Member for Gloucester, who spoke movingly about his own personal experience, including of third-party harassment. His example of the individual who was, effectively, punished when they refused to take a bag of shopping upstairs was telling, and it showed the risks of the power balance in zero-hours relationships. I think that that individual, having already been punished for refusing to take shopping upstairs, would have received similar retribution had he raised a grievance. That goes to show some of the challenges of the power balance for people working on zero-hours contracts.

There is considerable evidence on the impact of the zero-hours contracts. According to the Chartered Institute of Personnel and Development, 22% of workers on zero-hours contracts do not believe that their contractual arrangements suit their life, and the previous Government’s Taylor review in 2017 found that many workers on zero-hours contracts struggled with that one-sided flexibility and power imbalance, where employers often require employees to be available.

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[Laurence Turner]

The Minister spoke about the insecurity that can hang over agency workers, and said that their employment situation does not always represent genuine flexibility. As someone who has been an agency worker, I can certainly identify with what he says. On the point around regulations, does he agree that this is a long-standing precedent in employment law, dating all the way back to the Employment Agencies Act 1973, under which the current agency workers regulations are made? In terms of powers, this is nothing new.

[Justin Madders]

I am grateful to my hon. Friend for his intervention. Much employment law, particularly in relation to agency workers, is dealt with by regulations; that is appropriate because of the detail required. It is not a break with the past, albeit I accept the criticisms that we may be seen to be taking part for ourselves; I think it is entirely consistent with the way this has operated previously. It is something that we shall now consider in terms of the responses to the consultation. For those reasons, I think the hon. Member for Mid Buckinghamshire should withdraw his amendment.

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[Greg Smith]

It is certainly probing. Like earlier amendments, it is intended to spark debate so that we can understand where the Government sit on the issue, what is coming down the line and what businesses can expect in the real world once the Bill receives Royal Assent at some point next year.

The last Conservative Government removed exclusivity clauses in zero-hours contracts, tackling those contracts that were potentially exploitative. The clause that the amendment seeks to amend is based on the flawed assumption that employers will exploit their employees and that all the power in the relationship lies with the employer. There is no doubt that some do, but the Opposition do not hold the presumption that all will. Those that do should be challenged, but the vast majority do not seek to exploit their employees.

The London School of Economics has found that zero-hours contract jobs have 25% more applicants than permanent positions in the same role. That flexibility is clearly sought after by employees. The author of the study said:

“Policymakers should be cautious with how heavily the use of zero-hours contracts is regulated.”

The RPC has asked the Government to clarify the likelihood that the Bill’s provisions on zero-hours contracts will increase unemployment and worklessness, and how far that risk is mitigated by zero-hours contracts remaining potentially available. I would be grateful if the Minister clarified the extent to which they will remain available. What is his view on the impact that the policy will have on workers who might like to work fewer than the guaranteed number of hours a day? Some people may desire that.

We believe the legislation should include the exact length of the reference period. I accept Government Members’ point about the 18-month figure, but as I said to the hon. Member for Worsley and Eccles, it is about triggering a debate, kicking the tyres and getting to a reasonable but considered position on what the reference period should be. The Opposition’s point is that we should know what it is. It is not just politicians in this House and the other place who need to know, but the real businesses, entrepreneurs and drivers of our economy who employ real people. They need to understand what the legislation is going to specify and what the rules are by which they are going to have to play the game.

[Laurence Turner]

The Workers (Predictable Terms and Conditions) Act 2023 sets the reference period at 12 weeks. The hon. Gentleman says that 18 months is probably an artificially high number. Does he think that the 12-week reference period, which the previous Government supported just 12 months ago, is in about the right place?

[Greg Smith]

The hon. Gentleman is absolutely right that the previous Government set the reference period at 12 weeks. What we do not have clarity on is whether the Bill will change that. Will the new Government shorten it or lengthen it? It is about clarity. This is a rushed Bill, published in 100 days. We do not have the answers or the hard data that we need for debate and that individual Members need so that they can go to businesses in their constituency and take a view before they vote on Report or on Third Reading.

We heard from several witnesses that the length of the reference period needs to account for seasonal work. UKHospitality has put 26 weeks forward as a sensible length. That is not necessarily the Opposition’s position, but we would be foolish to ignore the evidence that the hospitality sector presented to us last week.

The amendment is intended to test what the Minister is planning and—ever the most critical question in politics—why. How will we ensure that the length will not be overly burdensome and that it will take account of the different needs of so many sectors?

Employment Rights Bill (Sixth sitting)

Laurence Turner Excerpts

Committee stage
Tuesday 3rd December 2024 Public Bill Committees

[Laurence Turner (Birmingham Northfield) (Lab)]

I follow my hon. Friend the Member for Gloucester and the hon. Member for Torbay, who both made very able speeches.

The shadow Minister, the hon. Member for Mid Buckinghamshire, asked about the justification for extending the current time limit from three to six months. One argument is set out in the Law Commission’s 2020 report, which argues that some of the current problems that employment tribunals experience are linked to late applications and the onerous requirement for applications, particularly in equalities cases, to demonstrate that there was a clear justification or inability regarding not submitting a claim in time. Those edge cases are adding to the current backlog and creating the incentive, which has been discussed already in this Committee, for people to bring cases under the Equality Act 2010, which is putting severe pressure on the limited number of specialist employment tribunal judges who deal with equalities matters.

Another argument is that there is an inconsistency in the law, because the time limit for equal pay cases is six months. The effect of these measures would be to equalise the time limit for other unfair dismissal and discrimination claims with that of equal pay.

In the previous Government’s 2021 response to the Law Commission’s report, they said—I hope this is taken in the constructive spirit with which it is intended—that the recommendations were welcome, but that it was not the right time to make such changes. I am therefore keen to hear the shadow Minister’s position on this extension, because the last Government’s position seemed a little like St Augustine’s prayer—“Let us equalise access to justice, but not yet!” I very much welcome the fact that these measures have been brought forward and that we now have a chance to equalise that time limit.

Last week, we heard from one of the witnesses, Joeli Brearley, that:

“I was pushed out of my job the day after I informed my employer that I was pregnant, and it was the tribunal time limit that prevented me from taking action against my employer.”––[Official Report, Employment Rights Public Bill Committee, 26 November 2024; c. 84, Q79.]

There are many such cases where, because of someone’s particular circumstances, they are not able to bring a case, or the burden of bringing a case within three months is too onerous. The requirement in equalities cases for a claimant to prove that an extension was just and equitable, or that it had not been reasonably practicable to bring a case in time, is adding to that burden on the tribunal system.

The Law Commission’s report was published in 2020, so the then Government had four years to model the impact of the changes that they were considering. If Conservative Members know of any impact analyses undertaken under the previous Government, I would very much like to hear about them.

[Dr Marie Tidball (Penistone and Stocksbridge) (Lab)]

I thank my hon. Friends the Members for Birmingham Northfield and for Gloucester for their ably made speeches outlining the very good and pragmatic reasons for the measure. They made points about ensuring that there is a good preliminary process to prevent litigation and laid out all the evidence with regard to the Law Commission.

The shadow Minister asked the Minister about principle, which my hon. Friends the Members for Birmingham Northfield and for Gloucester also touched on. It is clear that, after 14 years of Conservative Members not considering principle when it comes to access to justice, we are making these changes particularly for disabled employees and women who often have very complex lives. Disability is not static—it is dynamic, and health conditions fluctuate—so three months is a very short time period for people to put a case together if they have complex and fluctuating health conditions. It is right that the measure brings that time period up to the level of other equalities cases.

It is also fair to say that many working people have a huge amount to juggle in their day-to-day lives. For me, it is a point of great principle that this Government want to make it easier for them to access their rights and to access justice by giving them more time, being cognisant, as we are, of the many challenges that they might face just to keep a roof over their heads and to keep their family in a stable and supported situation.

The need to strengthen access to justice in such circumstances is important. We heard a great deal in the evidence presented to us about the many barriers for various groups and about the effect of the measure on women. It will give women an opportunity to have a longer period of time at the most challenging and complex moments of their life, such as during pregnancy and post birth, which seems to be eminently sensible and principled.

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[Greg Smith]

I am grateful to the Minister for that comprehensive outline of clause 1 but, as I reflect on our debate over today’s two sittings on the amendments to clause 1—the Government amendments that now form part of clause 1 and the Opposition’s substantive amendments, which were not accepted, and our probing amendments, which did not produce the answers we were looking for—I remain concerned that, putting aside some of the noble intentions beneath the Bill, there is still the lack of clarity we have spoken about regarding so many areas of clause 1.

The Minister himself admitted earlier that some things are still to be consulted on and that others are yet to be brought forward through secondary legislation. I am afraid that just does not cut it for businesses up and down the country that are still struggling with the aftermath of covid, the invasion of Ukraine and so many other factors. They need certainty. They need to know, if the rules of the game are changing, exactly what they are changing to—not some ballpark or some in-principle movement towards, but precisely the rules that they are being asked to play by.

Businesses will, of course, comply with any legislation passed by this House and this Parliament, but this provision is an unreasonable ask of them, whether in respect of what would constitute a low-hours contract, fixed-term contracts for qualifying workers or agency workers, or the exact definition of the reference period. It is simply an unacceptable proposition to those who run businesses, particularly, as multiple parties have said today, small businesses, be they microbusinesses or medium-sized enterprises—I fully accept that we can debate the exact number of employees that constitutes a small or medium-sized enterprise.

I recognise many of the good points the Minister made in his speech, and there are many things that we in the Opposition can get behind—at least in principle, if not in the precise lettering of the detail—but the lack of clarity, the Henry VIII powers in some parts and the “still to consult” parts in others make it very difficult for the Opposition to support clause 1 as it currently stands.

As I said earlier, we want to be a constructive Opposition. We might not agree with the Government’s standpoint on many things, but it is important for the United Kingdom that they succeed in their endeavours and that they do not provide an environment in which there will be fewer jobs, not more, with businesses being more reticent to take on new members of staff. That goes particularly to the points around how people who are deserving of a second chance in life, no matter what has happened to them before, may not get that opportunity because it is too big a risk for small businesses that are struggling to get around all the new regulations, rules and laws.

I particularly highlight again the point about small businesses just not having the capacity to deal with new regulation. As has been said, they do not have HR departments or in-house legal services, and they cannot necessarily afford to hire them in if they are to continue producing their products or selling their services to the great British public, or wider than that. I urge the Minister to go back to the Department, focus on where the detail is lacking and put an offer to the House and the wider country. Our business community need not necessarily agree with it, but they should be comfortable that they can understand it and put in place the measures for their employees and businesses. To ensure their growth and success, they desperately require certainty.

[Laurence Turner]

I will not keep the Committee long. A lot has rightly been said about the need for certainty for business, but we should remember that the other side of the coin is the need for workers to have certainty. I was contacted recently by a constituent who works a zero-hours contract in the hospitality sector. He is unable to get a mortgage because the bank will not grant that facility to him due to the nature of his contract. At the level of the individual, this means economic activity and family planning being put on hold.

In parts of the economy, there are employment situations—we do not, of course, tar all employers with the same brush, but if there were no bad employers there would be no need for trade unions—in which people are turning up to work, sometimes in digital form, to find shifts being mediated through applications, not even through people. It is the 21st-century equivalent of a foreman standing at the factory gate and allocating shifts on an arbitrary basis. We have heard today about the potential, which is too often realised, for favouritism and abuse of that facility.

We have had good debate about a number of details regarding the changes in the Bill. The changes in clause 1 will be welcomed by people who work in the retail sector, including in my constituency, and in other sectors that have high rates of zero-hours contract working, including the care sector. I very much welcome the clause.

[Sarah Gibson]

Despite some of my concerns, I would like to lend my support to the clause, because the guarantees for workers are important. I caveat that by saying that the guidance for SMEs must be clear and must come out soon, so that there is less concern in the business community about taking on staff. Currently, I see an unintended consequence in SMEs, certainly in the near future, not taking on staff because of the fear of additional costs.

While I am on my feet, I would like to make a correction for the record in respect of this morning’s debate. In the debate on amendment 137, although the shadow Minister made a comment about this in his closing speech, it was not my intention to suggest that the Liberal Democrats wish to alter the current definition of SMEs from being 249 employees. I want to make sure that is clear.

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[Greg Smith]

I am grateful to the hon. Gentleman for his intervention. He is right that there may well be something else that can be done—perhaps a stocktake, or making a start on refurbishing the place, or whatever it might be—but that will not be the case in every circumstance. I can only repeat the point that I am not making this argument in respect of the majority of cases, or those that might affect a business that is already in distress; I am making it in respect of those few occasions that might take a business to that point or much closer to it. I cannot imagine that anybody on this Committee, or indeed any Member of this House, would want to see that unintended consequence.

[Laurence Turner]

rose—

[Greg Smith]

I will take one more intervention.

[Laurence Turner]

I am grateful to the shadow Minister; I suspect he is setting some kind of record with the number of interventions he is taking. Earlier, he said that there may be alternative measures and protections to mitigate the problem that the Minister is seeking to address, whereby someone has been called to a shift but has arrived, incurring some cost, to be told that there is no work available. What alternative measures does the hon. Member have in mind?

[Greg Smith]

There are a number of options that could be looked at. The time set out in the regulations could be much more flexible. There could be safeguards for force majeure circumstances, which is common in a lot of contracts. There is no reason why that could not be in legislation. Or if the Government want to go down this path, albeit it is not something that Conservatives would propose, perhaps a more elegant way of going about it would be some sort of legislation on compulsory insurance against such eventualities that ensured that both sides were able to benefit—that the employee still got paid at least something, if not their full expected wage for the day, but the business was not directly out of pocket either. That would have to be tested in the insurance industry to see where premiums would come out, because they may well be unviable, but I gently suggest to the Government that it is a tyre worth kicking.

I conclude with a point I have made many times: this has to be about flexibility in real-world circumstances.

Employment Rights Bill (Third sitting)

Laurence Turner Excerpts

Committee stage
Thursday 28th November 2024 Public Bill Committees

[Steve Darling]

Q I have one short question. How do you see the Bill impacting the United Kingdom’s productivity?

Liron Velleman: The Bill should have a positive impact on productivity. Following on from Joanne’s previous answer, when people are in insecure work, they are worried about whether they are going to lose their job tomorrow, whether they will lose some of their benefits or pay, and whether they will have the security of knowing what shifts they will be working. Tightening up lots of parts of employment legislation currently on the statute book should give workers extra confidence, so that they will be able to be happy at work and work more flexibly, representing the current state of the economy rather than keeping to how things were. That should, in totality, result in greater productivity for businesses as well as for individual workers.

[Laurence Turner (Birmingham Northfield) (Lab)]

Q For context in respect of a previous question, the record shows that “re-unionisation of the economy” was language used in a question by the shadow Minister, not in an answer from a witness.

The Bill covers part of the “Make Work Pay” agenda. Are there other measures in the “Make Work Pay” document published earlier this year that should be included in the Bill?

Liron Velleman: The Bill clearly represents a great step forward in improving workers’ rights. For some of our members, it is in some ways a Bill for employees’ rights, rather than an employment rights Bill. Our members in the self-employed sector are looking for rights and protections to reflect the nature of the work that they do. In the “Next Steps to Make Work Pay” document, there are clear suggestions that there will be greater rights and protections for self-employed members, but that is a priority that we would like to see as part of the Bill, to fully grasp the current employment landscape in this country.

There is also a point around the consultation on new surveillance technology in the workplace. Clearly, technology in the workplace is one of the biggest benefits to lots of our members and to businesses, but it is also one of the biggest challenges when we think about the new world of work. Making sure that workers understand and are trained on, and can get to grips with, technology in the workplace, surveillance or otherwise, is vital to ensuring that they have the best rights and protections at work. Those two things would be our strong priorities for the Bill.

Joanne Cairns: For us, one of the key areas is statutory sick pay. The removal of the three waiting days and the lower earnings limit is extremely important and will make a massive difference to a lot of low-paid workers. However, the Government committed to strengthening SSP, and we would like the level of SSP to be looked at. It is well documented that the current level of SSP is below what people can afford to live on. If you earn the national living wage, you earn only around a quarter of your salary when receiving SSP, which has a significant impact on low-paid workers. That said, the removal of the three waiting days is extremely important and will make a big difference.

In respect of the right to guaranteed hours, which we warmly welcome, it is very important that the way it is implemented covers as many workers as possible. The commitment from the Government was that everyone would have the right to a contract that reflects the hours they normally work. We are concerned about the inclusion of the term “low hours” in the “Next Steps” document, which we feel could have the unintended consequences of making the right apply less widely than it should, and potentially undermining its effectiveness.

[Chris Law (Dundee Central) (SNP)]

Q I want to ask Joanne a little bit about USDAW’s experience dealing with Tesco. Tesco is one of the biggest employers in my constituency and it has a live case in the Livingston distribution centre regarding fire and rehire. I know that USDAW has put a lot of resources into taking Tesco to court over its distribution centres elsewhere—it won and then unfortunately lost on appeal. In our attempt to ban fire and rehire, do you think it is reasonable to include in this Bill a clause that basically allows a “get out of jail free” card? If we look at those who have tried to exploit fire and rehire so far, it is P&O, British Gas, Tesco, British Airways—they are not small companies. The clause says that if the company is in financial difficulties then fire and rehire could be continued. Do you think that should be taken out of the Bill altogether?

Joanne Cairns: We welcome the Government’s commitment to tackling fire and rehire. It is an issue not only when fire and rehire tactics are used, but when they are used by employers in negotiations as a form of threat to try to force unions or individuals to accept terms that they may not be happy with. Around a third of our members have been asked to change their contracted hours to support business need in the last 12 months, and one in five of them said that they felt forced into agreeing to the change, having been threatened with fire and rehire. It is a major issue. You referenced our legal case against Tesco, which demonstrates that this issue affects members in all sorts of workplaces.

Our preference would be for an outright ban on fire and rehire, and we would prefer the provision to be removed. If that provision stays in the Bill, our concern would be about the use of the word “likely”. We would like either for the word “likely” to be removed in reference to financial problems, or, at the very least, for there to be stringent guidance and a high bar set for the definition of “likely”.

Liron Velleman: At Community we had a similar case on fire and rehire back in 2021 with Clarks shoes. Our members at a distribution centre in Street in Somerset were threatened with a huge reduction in their hourly wage and the removal of their sick pay and coffee breaks. After a long campaign from our members in the union, and solidarity from across the UK, we managed to force the company to reverse its decision through ACAS mediation, but it clearly should not have been allowed to happen in that way at all. Our general secretary said at the time that, until fire and rehire is outlawed, no worker is safe from the harms that it can cause.

We hugely welcome the Government’s efforts to end fire and rehire, but we have similar concerns to USDAW about how the language about “likely” financial distress will be used in reality, given that it is rarely good-faith employers that use tactics such as fire and rehire in their workplaces. We do understand that there might be absolutely exceptional circumstances where the business would otherwise close. The question is whether the word “likely” will cast the net too wide and allow bad-faith employers to continue fire and rehire, even if the stated intention is for that not to happen.

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[Sarah Gibson]

Q I have a quick question. Do you think that some of the reforms in the Bill will genuinely help people who are disabled to go back into work in a more flexible and safer environment, and will therefore encourage them to take on employment where perhaps they are not doing that at the moment?

Nye Cominetti: The bit of the Bill that most obviously addresses that is the right to request flexible work, which is being strengthened, as I am sure you know—employers now have to give a justification for saying no. When you look at surveys of workers with disabilities or elderly workers, flexibility is very often mentioned as something that might have helped them to stay in work.

If you will allow me to make a second point, surrounding all these measures and, in fact, our employment framework more generally, are questions of enforcement and worker power—they are sitting at the side, but they are absolutely crucial. There are many existing rights that workers have on paper, but because our enforcement systems are fairly weak, especially compared with other countries where the state does more of the job of enforcing these rights, people do not necessarily experience in reality the entitlements that the law says they should have.

Even in a world where workers gain that strengthened right to flexible work, that means little if they, for example, look at the employment tribunal system delays and think, “Well, that’s an impossibility. There’s no point fighting my employer over this. I’m never going to win that,” or, “I can’t spend the next two years waiting to win that.” So the answer is yes, but only if we also resolve some of the existing problems about people’s ability to enforce their own entitlements.

[Laurence Turner]

Q I was struck, in the impact assessments, by the statements that a number of the costs, but particularly more the benefits, or potential benefits, of these measures cannot currently be quantified. There are, of course, well-advertised problems with UK labour market statistics at the moment. Realistically, what more could the Government do in respect of future measures to better capture the full range of costs and benefits associated with employment law?

Nye Cominetti: You are right: labour market statistics are not currently in a good place. The Office for National Statistics’ labour force survey is in the doldrums in terms of response rates; so if you wanted to increase the resources going into that, I would welcome that, as a researcher. Realistically, many of these knock-on benefits are incredibly hard to estimate. Personally, I think we have to accept a world where we say, we know that workers will benefit in terms of wellbeing from some of these measures. I do not think you need to put a monetary value on that to say it is worth doing, personally, but I know that is not necessarily the way that Government Departments think about these things.

In terms of the costs—businesses will be saying, “If you do this measure, I will have to reduce hiring by this much”—I think we could be moving from relying on what businesses say. I know that many businesses will be engaging with these processes in good faith, but the history, for example with the minimum wage, is for businesses to say, “If you raise this cost there will be dire consequences: job losses will look like x and y,” and in the end that does not turn out to happen because businesses find ways to adapt. That does not mean that will happen this time—there is no guarantee that you can keep pulling off the same trick of raising labour costs and not triggering an impact on employment—but looking for evidence on what has actually happened in response to similar changes in the past or in other countries, rather than relying on what businesses say, might be a better guide. But that might be controversial.

[Chris Law]

Q I am sure you welcome some of the proposed changes to statutory sick pay. One key problem with it is the level of sick pay. People still go to work ill because the level of sick pay is simply not enough: £116.75 averages 18% of the average weekly wage at the moment. That is half the equivalent percentage when it was introduced in the 1970s, and it is the lowest of all OECD countries. Would you like to see a threshold put into the Bill by which that is measured, so that we can get statutory sick pay that stops people going to work when they are ill?

Nye Cominetti: Thank you for the question. I was hoping to get the chance to talk about sick pay specifically. That is one area where the Government have gone halfway to addressing an area of insecurity. Removing the lower earnings limit is great; the lowest earners, mainly women working few hours, all have access to SSP now, which is excellent.

Removing waiting days is an important change as well. It will no longer be the case that you have to wait four days to receive anything and, as you know, for most people who are off sick for a few days with a cold, that is a one or two-day situation, not a week. Those measures are good, but what they do is extend a very low level of coverage to more workers. As you say, we have not resolved the fundamental problem that if SSP is what you rely on, as is the case for a majority of low-paid workers, you will still face a very serious income shock if that is what your employer ends up paying you when you do that.

Raising the level of SSP comes with a much bigger cost. First, it would be employers that would pay it, and then the Government would face a decision about whether to reimburse, perhaps, smaller employers facing the largest cost, as has happened in the past. It is a more costly measure, which is why the Government have not done it, but I hope that they have it on their list to address it soon because, as you say, it remains the case that for our low-paid workers, falling sick means earning less and facing an income shock. I do not think that is right.

You can either look at high-paid workers who do not experience that shock, or you can look at the vast majority of rich countries who have set in place a statutory minimum much higher than we have in the UK. That is not the case in the US, but almost all European countries—not just the Scandinavian countries that we look to as the far end of the scale in terms of welfare state provision, but the vast majority of countries across Europe—have a sick pay system that is much more generous and offers much more protection to workers than does the system in the UK. So yes, I would agree that that remains a glaring unaddressed problem.