Employment Rights Bill

Lord Hendy Excerpts

2nd reading
Thursday 27th March 2025 Lords Chamber

[Lord Hendy (Lab)]

My Lords, I congratulate my noble friend the Minister on her elegant exposition of the Bill in opening today’s debate. I also congratulate our four maiden speakers on their excellent contributions. Like the noble Lord, Lord Balfe, I enjoyed the contributions of no less than three former general secretaries and one former AGS of the TUC.

In this debate I appear as Oliver Twist. Although, like others, I express gratitude for the Bill in place of the starvation rations given to workers by the previous Government, I ask for more.

The Bill will confer many benefits on our 34 million-strong workforce, but it is a long way short of the full—but hardly gastronomic—menu in Labour’s Green Paper, A New Deal for Working People, drafted by a committee to which I had the honour to be legal adviser and which was chaired by Andy McDonald MP. A New Deal for Working People was adopted by the Labour Conference in 2021, reaffirmed in 2022, reiterated in Labour’s Plan to Make Work Pay: Delivering A New Deal for Working People, and referenced in both the election manifesto and the King’s Speech.

Time permits me to raise only two of the many items left off the bill of fare. Both are essential to increase pay, and hence demand, in the economy. Both are vital to substitute negotiation for litigation. The first is sectoral collective bargaining: in other words, collective bargaining between unions and multiple employers to reach a collective agreement setting minimum terms across a particular sector called a “fair pay agreement”. A New Deal for Working People committed to introduce them across the economy. Labour’s Plan to Make Work Pay promised to

“start by establishing a new Fair Pay Agreement in the adult social care sector”.

The election manifesto referred to this fair pay agreement as a “sector collective agreement”. In contrast, the Bill makes no provision for sector-wide collective bargaining in any part of the economy. Instead, it expressly provides that the School Support Staff Negotiating Body does not constitute collective bargaining, and that its outputs are not collective agreements. For the Adult Social Care Negotiating Body, the Minister has regulatory power to so rule.

In any event, ministerial control over these bodies’ membership, terms of reference and manner of working, with unfettered power to override any agreement or disagreement, completely negates the definition of free collective bargaining, both in statutory and international law.

My second issue is the right to strike. The Bill sweeps away the minimum service level Act, and most of the Trade Union Act 2016; it simplifies notice and extends ballot mandate. The Government are to be congratulated. But the Bill does not remove the anti-union legislation of the 1980s, which hamstrings unions and has led to a near collapse in collective agreement coverage. That legislation is incompatible in a number of respects with our ratified obligations under ILO Convention 87 and Article 6(4) of the European Social Charter. This is not a matter of opinion. The supervisory bodies have so held consistently since 1989, as my noble friends Lord Barber and Lady Bousted have mentioned. A new deal committed this party to bringing our law on industrial action into line with our international legal obligations. It is a rule-of-law issue. The Bill will need to be amended accordingly.

Nevertheless, the grace and eloquence of the Minister make her singularly ill-fitted to play Mr Bumble.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Tuesday 29th April 2025 Lords Chamber

[Baroness Carberry of Muswell Hill (Lab)]

My Lords, I follow on from the excellent points that have been made by my noble friends on this side of the Committee by addressing, perhaps more specifically, the letter of Amendment 1. I preface my remarks by saying that I might be new to this, but I am a bit puzzled because I thought that the Benches opposite did not like purpose clauses. In the past, when Labour proposed such clauses, there was some push-back, and this side has been accused of poor practice and of risking provoking unintended consequences.

My main problem with the proposed new clause is that the list provided is not exhaustive and understates the Government’s ambition with this Bill. If we were to put our heads together to produce an exhaustive list of purposes, perhaps we might include the purpose that the Bill helps give effect to the Government’s manifesto promise to make work pay. We might also want to add that the ambition is to help stimulate economic growth, building on the extensive international evidence we have that shows that labour market protections lead to improved economic outcomes, including higher productivity. We might also want to mention that the Bill aims to end exploitative practices and redress the balance between employer and worker, and that it seeks to modernise trade union legislation.

My general point is that perhaps we do not need such an extensive list. I invite the noble Lord, Lord Fox, to clarify for us in his response in what way a non-exhaustive list, as provided in this amendment, is any better in advancing understanding of the intentions of the Bill than no list at all.

[Lord Hendy (Lab)]

My Lords, I too rise to address Amendment 1. It is a pleasure to follow my noble friend Lady Carberry. I am not clear about the purpose of Amendment 1. It seems to me that the Government have laid out the purpose of the Bill in the Long Title. It has been given a very Long Title that sets out its ambit.

What I am clear about, however, is the need for this Bill. Last August, a report by Professor Deakin and Dr Barbakadze of Cambridge University, Falling Behind on Labour Rights, stated that

“on almost every measure of employment protection, the UK is significantly behind the average for other countries in the Organisation for Economic Development and Cooperation (OECD), 38 countries generally understood to be those with a high level of economic and social development globally … As they stand, labour laws in the UK are barely half as protective as those found in France and significantly below other notable European countries … This strongly suggests that there is significant scope for improvement before British labour law is even close to matching that of our nearest neighbours”.

My noble friend Lord Monks mentioned inequality in the United Kingdom in comparison with other countries. The OECD has also considered that. It currently ranks Britain as the eighth most unequal of 40 major economies in terms of income inequality. Among EU member states, only Bulgaria and Lithuania are more unequal than the United Kingdom. The European Participation Index ranks the degree of worker participation in business decision-making in different European countries. The UK is rated 26th out of 28, with lower participation than all countries except Latvia and Estonia.

There are many other metrics by which the current state of play can be judged, and the status quo is simply not acceptable. I will not mention them all, but I will mention just three. First, median pay in this country is currently just over £600 a week. Median does not mean average; it means the pay point of half the working population. In other words, half of workers earn less than just over £600 a week, although half earn more than that. Secondly, of those on universal credit, 37% are actually in work. Thirdly, we find that 6.8 million people are in insecure work; three-quarters of them—that is, some 5 million workers—are in what is described as “severely insecure” work.

The Bill does not do all that I think it should. I had the honour to serve as the legal adviser on the working party that drew up A New Deal for Working People. It is clear that there are major differences. In later debates in Committee, I will seek to move some amendments to redress some of what I consider to be the shortcomings. Overall, however, the need for the Bill is simply unarguable. We cannot go on in the way that we are at present, with workers denied a voice at work, working in insecure conditions and on extremely low pay. The Bill will go a long way to assist in putting that right.

[Lord Empey (UUP)]

My Lords, I hope this Bill does not turn into a Punch and Judy show between employers on one side and organisations and trade unions on the other, because it obviously has a number of meritorious proposals. However, the forensic introduction to the amendment by the noble Lord, Lord Fox, illustrates that this piece of legislation is a work in progress. I understand why the Government deem it so important, but they have to concede that a lot of it is being done on the hoof, which is undermining the Government’s position.

I had the privilege of being Employment Minister in Belfast for three and a half years, and I worked very closely with business and trade unions during that period. The last piece of legislation I did had the racy title—I am sure the Minister would be very happy to adopt it—of the Employment (No. 2) Bill. It is the sort of thing that lets the blood course through your veins. But the one area where we have failed as a country for years and years is skills. We talk about it, we have apprenticeship models, we have this, that and the other, yet we still have not solved the problem. We got rid of the old-style tecs, colleges and so on, and we have been stuck in a rut ever since.

It is obvious that there have been abuses and insecurity, and there is no point in trying to deny that; I listened carefully to what the noble Lord, Lord Monks, had to say. However, there is something that I feel a bit concerned about. We live in a world where, by and large, the major trade unions operate with large employers, whether it is the public sector or big organisations, but the bulk of the industry—the bulk of the growth in employment and everything else—comes from small businesses and micro businesses, and they do not have the capacity or the risk-taking capability in how and when they employ people.

It strikes me that there is a risk of issues creeping into what we are trying to do in this country that could have the unintended consequence of making it less likely for people to employ individuals. We have to look at the international situation. We cannot ignore what is going on. There is a revolution taking place that is having a negative effect. We also have the employer national insurance contribution. We cannot ignore that either; it is a big deal.

--- Later in debate ---

[Baroness Carberry of Muswell Hill (Lab)]

My Lords, I am sorry that I find myself disagreeing for the second time today with the noble Lord, Lord Fox, specifically on the proposition that the right to be guaranteed regular hours should be replaced by a right to request.

My noble friend Lord Barber reminded us that this proposal originally came seven years ago from the Low Pay Commission. In that room were nine commissioners, who produced a unanimous report. There were three independent labour market experts, three representatives of workers and senior representatives from the Federation of Small Businesses, the CBI and big business, and, as I say, the recommendation was unanimous. In that discussion, the Low Pay Commission considered, in the words of the noble Lord, Lord Fox, whether a right to request could operate more effectively than a guaranteed offer on the ground and in the workplace, and the conclusion was that a right to request would not be a better option. That was primarily because you would be asking workers who have the least power in the labour market—the most vulnerable workers—to assert their rights. As we have been reminded, the vast majority of those workers who at the moment request guaranteed hours are turned down.

Another problem, from my point of view, with the group of amendments that are suggesting that there should be a right to request is that they are all silent on the consequences of a denied request. That is a major problem with the propositions in the amendments. In this context, I suggest that a right to request is no effective right at all.

[Lord Hendy (Lab)]

My Lords, I have a small point on Amendments 7 and 11 to 13, which seek to extend the reference period from the current 12 weeks in the Bill to 26 weeks. Last year the Chartered Institute of Personnel and Development published some figures showing the number of workers who stayed in their job for a three-month period, which I take to be some 13 weeks rather than the 12 weeks in the Bill. Some 1.3 million workers worked for less than that period of time, meaning that under the Bill 1.3 million workers will never reach the end of the reference period in order to claim the right. The figures show that if the period were extended to 26 weeks, as the amendments propose, that would cover some 8.9% of all employees, which comes to 2.7 million workers. So the effect of those amendments would be to exclude a further 1.4 million workers from ever being covered by the reference period.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Thursday 8th May 2025 Lords Chamber

[Baroness Coffey (Con)]

My Lords, I support the amendments tabled by my noble friends. I am just thinking of my career. I have had quite a conventional career in many ways, but I have also had many extra roles, particularly when I was a student—I am conscious that we will come to Amendment 19B separately later. It is important to reinforce the challenges in starting up or expanding a particular business. It is well said that a coffee shop will know within the first week whether it will succeed. You could argue that there are different factors, but within the first month a business will certainly know whether the footfall and the sale per customer justify the number of people it is employing and adapt accordingly.

As my noble friend Lord Hunt of Wirral mentioned, there is also this extended element about things such as holidays. It may surprise your Lordships to know quite how many jobs are, frankly, based on whether it rains and people cancelling going out to do different things. That is one of the reasons why, in particular but not exclusively, many hotel chains have started having a price differential: basically, you get a better deal if you book up front, but you cannot cancel or get your money back. Indeed, it is why even more restaurants are, effectively, starting to pre-charge an amount of money that is expected so that people do not cancel. Having lived in touch of the coast for most of my life, I can assure your Lordships that the fluctuation in how many people actually turn up to a resort for the day in a town is real, and what that means for temporary jobs.

That is why I think my noble friend Lord Hunt has found a good way of trying to help the Government to consider some of the everyday decisions that employers have to make as to whether they open up in the first place, whether they try to expand, and whether they try to get the growth. If I go further on to Clause 20, at the same time that the Government are trying to encourage businesses to go into artificial intelligence and see all that can be embraced in that regard, they need to bear in mind that businesses will not invest in such technologies if they are concerned that the other costs will be so detrimental to them.

We keep having this Catch-22 situation: if the Government want growth, they need to recognise the success where employers have been given the chance to scope and to be flexible, although I understand entirely the Government’s intent that the employer should be reasonable with the people that they take on. It is for these reasons—and I will speak more in the next group—that I believe that the Government should seriously consider how they operationalise this. We keep hearing about more and more consultations. We have heard people from the British Retail Consortium, from retailers and from hospitality saying that these are the real issues. We are almost doing their consultation for them by putting forward these amendments, so I hope that the Minister will look on them carefully in his consideration.

[Lord Hendy (Lab)]

My Lords, I shall make four short points on these amendments, all of which I oppose. First, the noble Lord, Lord Hunt, suggested that employers would get locked into guaranteed hours. I remind him that all contracts of employment may be varied by mutual agreement or, if not, they can be terminated and there can be re-engagement on fresh terms.

Secondly, the noble Lord mentioned the industrial reality. The industrial reality of zero-hours contracts is a complete disparity of power: 80% of those on zero-hours contracts would prefer a permanent contract, but those on zero-hours contracts are completely at the mercy of the employer. They do not know how many hours they are going to work tomorrow, let alone next week, and they do not know how much income they will make at the end of any week. Therefore, a worker on a zero-hours contract does not want an argument, to fall out or have a disagreement with the employer. That is a vital component of the legislation my noble friend proposes.

--- Later in debate ---

[Lord Hendy (Lab)]

I endorse what my noble friend Lord Davies said a moment ago. A trade union is defined by Section 1 of the Trade Union and Labour Relations (Consolidation) Act, and it is an organisation of workers the primary purpose of which is to regulate relations between employers and workers. That is the only definition. Any body that does that is a trade union. So the sorts of organisations identified in these amendments will be trade unions. But, as trade unions, they have consequential obligations. For example, they have to elect their general secretary and their national executive committee by ballot every five years, and so on. So there are consequences to these amendments. By the way, a trade union defined by Section 1 is not necessarily independent. There are independent trade unions listed by the certification officer and non-independent trade unions. “Independence” has a specific meaning under the legislation.

[Baroness Jones of Whitchurch (Lab)]

Phew—I do not know whether I want to join in this philosophical debate because, clearly, we have heard strong views on both sides, and they have strayed way beyond the amendments we are trying to moderate today. But I would say that the Bill overall seeks to find the right balance between workers, unions and businesses, recognising that each has an important role to play. Our aim in the Bill is to modernise those arrangements for the 21st century so that we are not playing “Yah-boo, you did that back in 1953” but are actually looking to the future. We hope that is what the Bill will deliver.

These amendments aim to broaden the provisions in the Bill to allow employee representative bodies or staff associations to collectively agree to modify or opt out of the zero-hours measures. The Bill already allows these collective agreements to be made, but only by trade unions. As we are allowing for modification of statutory employment rights, it is vital that the appropriate safeguards are in place. This includes that only trade unions that have a certificate of independence, and are therefore free from employer control, can agree with employers to modify or opt out of rights, and that rights are guaranteed in exchange and incorporated into a worker’s contract.

I make it clear that staff associations and employee representative bodies, some of which we have heard described this afternoon, can do really good work, and we welcome engagement between employers and workers in all forms. However, we do not think it is appropriate for these associations and bodies to be able to modify statutory employment rights. This is not least because they may not have sufficient independence from the employers—a point well made by my noble friend Lady O’Grady—unlike independent trade unions, which do have that independence and which offer high levels of protection to workers. Furthermore, there is a well-established framework for trade unions, including recognition, independence and incorporation of terms, and the provisions build off these provisions.

I can see that the noble Lord’s amendments suggest a framework of requirements that staff associations and employee representative bodies would need to meet in order to modify or exclude zero-hours rights. These include requirements around independence, recognition, elections and record-keeping.

However, as my noble friends Lord Hendy and Lord Davies have said, the more you incorporate those requirements, the more you add to a staff association or employee representative body, the more similar it appears to be to an independent trade union. Given that the trade union framework is well established, historically and legally, it is not clear to me that it makes sense to establish a similar but different structure just for the purposes of the zero-hours measures. I am grateful to my noble friends Lord Davies, Lady O’Grady and others for reminding us of the hard-won rights that we have achieved through organisations within the trade union movement. Trade unions already serve to protect and advance the interests of workers.

I felt that the noble Lord, Lord Moynihan, presented a caricature of the unions. For every criticism he has, we could come back with all the advantages that trade unions have delivered for working people over the years in pay and conditions and in some of the fantastic campaigns—for example, around the environment, women’s rights, and so on. They have already contributed enormously to modernising workplace rights, so I do not feel that it would be appropriate or proportionate to try to recreate them. The trade unions already provide the constructive dialogue with employers to which the noble Lord, Lord Sharpe, refers, and membership of trade unions remains voluntary for employees.

I say, too, to the noble Lord, Lord Sharpe, that there is a technical issue around all this. If his amendment was accepted as drafted, it would not achieve the aims that he intends. Collective agreements have a specific definition in the Employment Rights Act 1996, which the zero-hours provisions are being inserted into. The definition, referring to the definition in the Trade Union and Labour Relations (Consolidation) Act 1992, provides that collective agreements are ones between independent and certified trade unions and employers’ or employees’ associations, so there would not be scope in the way that the noble Lord has worded his amendment for a wider definition of employee representatives.

We have had a debate which I have a feeling we are going to return to on some of the other trade union issues, but, for the time being, with this set of amendments in mind, I hope that the noble Lord, Lord Sharpe, will consider withdrawing his amendment.

--- Later in debate ---

[Lord Katz (Lab)]

I thank my noble friend Lady O’Grady for that; I would of course be very happy to write to her and my noble friend Lord Watson on this. The point that we are making is that there is already a mechanism in place to upgrade. That does not mean that it is not something that organisations concerned about the limit of compensation can lobby on, but the amendment as tabled is superfluous; it would not add any powers that are not already in law or in the Bill already.

[Lord Hendy (Lab)]

Perhaps I could add something on that subject. I think that my noble friend suggested that there was one overall cap and that consistency was required, which is the point that my noble friend Lady O’Grady has developed. In fact, there is a range. Unfair dismissal is subject to a maximum per week for two years. Redundancy, which the Minister mentioned, is on a different basis; it is, essentially, one week’s pay for each year of employment up to a maximum of 20. Discrimination is dealt with on a different basis altogether, with no cap at all—it is the amount of compensation. So I do not think that consistency is really an answer. A general review would be very helpful, though.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

[Lord Jackson of Peterborough (Con)]

Well, the noble Baroness will not be present at every employment tribunal and hear and adjudicate every case. As my noble friend Lord Young of Acton has said, there is a significant threat of inadvertent issues arising from this legislation, which, as my noble friend Lady Cash has said, is very poorly drafted. As subsection 2(a) of the proposed new clause sets out, it is important to look through the prism of free speech at Clauses 19 to 22.

It is also important to look at the likely costs to employers. This is the central point of my remarks: we do not know what those costs will be. It is certainly appropriate that Ministers be required to tell Parliament what the ramifications are in terms of cost. This is a Government who are committed to growth and to supporting businesses in all their endeavours. Therefore, it would be sensible to consider a review of how these issues impact on businesses.

On proposals for mitigations, there have been no ideas, no protocols, no concordats, and no policies put in place to give any guidance to smaller businesses—I am not necessarily referring to the smallest micro-businesses—to cope with the problems deliberately arising because this Labour Government have chosen to put these encumbrances and burdens on businesses. They are not giving any support to businesses to help cope with this. The costs will fall on the shareholders, on the businesses, and ultimately on the workforce—and it will cost jobs. For that reason, I support the amendment. It does not detract from the important commitment to protect ordinary working people, who deserve to be able to go to work without being bullied, harassed or treated unfairly or egregiously. We all agree with that, on which there is a consensus. It would not detract from that to make an amendment that would provide extra protections against people who are vexatious or malicious, or who cause difficulties in the long run, for no apparent reason. It is a sensible amendment that would protect business and would also protect the workforce.

[Lord Hendy (Lab)]

Can the noble Lord indicate what he thinks the value of an impact assessment is that does not weigh the benefits that ensue from the legislation but only the costs?

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Wednesday 21st May 2025 Lords Chamber

[Lord Monks (Lab)]

My Lords, I do not doubt that critics of this part of the Bill speak with a lot of personal experience as well as commitment to their employees and the way they run their affairs. However, let me remind people that the argument that is really coming from the other side—that the qualifying period would be damaging to employment—is the argument as has been used against just about every bit of progressive employment legislation from the Factory Acts onwards. If noble Lords think that that is hyperbole, they should remember the national minimum wage and the campaign that was run against it. None of that came to anything like what was forecast from that side of the House. I have risen briefly to ask the other side of the House to remember that it was wrong on the minimum wage and to consider whether it might be wrong on this as well.

[Lord Hendy (Lab)]

My Lords, I get the impression that there is a bit of a misunderstanding around the nature of employment tribunals. I spent the first half of a long career at the Bar doing employment tribunal cases, many of them unfair dismissal cases. In fact, the first case I ever did—pro bono, by the way—was an unfair dismissal case in 1972, under what was then the very new unfair dismissal legislation. Unfair dismissal cases are difficult for employees to win. Most cases that go to a full hearing result in the employer being vindicated.

I want to make two points. The first is that employment tribunals now have robust procedures for weeding out vexatious cases; such cases never go to a full hearing. Secondly, I remind your Lordships of the law on unfair dismissal in Section 98 of the Employment Rights Act 1996. The test is in two parts. First, the employer must demonstrate that the reason for the dismissal is capability, qualifications, conduct or redundancy or the fact that the employment is in breach of some enactment. Once the employer has shown that that is the reason, the test for the tribunal—I shall read it out—is whether the dismissal is fair, which,

“depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee”.

So all the factors that one would expect to have to be taken into consideration are taken into consideration.

The tribunal then has to determine that,

“in accordance with equity and the substantial merits of the case”.

The Court of Appeal has added yet another burden. When the tribunal decides whether the employer acted reasonably or unreasonably, it is not about what it considers was reasonable or unreasonable; it is about whether it considers that the dismissal fell within the band of responses of reasonable employers. It is at two stages removed. It is not like an ordinary negligence case where the court decides whether an employer was reasonable or not reasonable in putting a guard on the machine. It must decide. Even if it thinks that the decision was unreasonable, if it finds that, nevertheless, reasonable employers would say that it might be possible that the reason was fair, that would be legitimate.

[Baroness Noakes (Con)]

The noble Lord referred to the likelihood of cases succeeding if they got as far as the tribunal. Does he accept that the vast majority of cases that are initiated never get as far as a tribunal because there is a huge incentive in the system for employers to settle? The costs of taking a case right the way through are huge—not just in the monetary cost of employing clever employment lawyers but, in particular, in the diversion of management effort within the organisation. I have seen this in large organisations, where swathes of the management team can be tied up for long periods of time. Employers cannot afford that in the broadest sense. If you put that in the context of smaller organisations, they absolutely cannot cope with it.

Whatever happens at the tribunal and whatever the law says, the mere initiation of an action nearly always results in an economic decision, made by the employer, to settle. That is one of the most difficult aspects and is why extending that into the early period of employment causes so many worries for employers.

[Lord Hendy (Lab)]

I absolutely agree that most cases never get to a full hearing; only a tiny minority ever do. The noble Baroness is right that many cases settle, of course. Many are conciliated, because there is now compulsory conciliation by ACAS, but many are withdrawn by the employee. You have to visualise it, as I am sure the noble Baroness does: most employees bringing an unfair dismissal claim are completely unrepresented. They are on their own, so all the expense, research and preparation that have to be done must be done by them personally. That is a huge disincentive. Many claims—tens of thousands of them—are simply not brought because it is not worth the employees’ while to do it.

[Baroness Verma (Con)]

My Lords, does the noble Lord accept that the case is exactly the same for small employers? They too will be in the position of having to deal with tribunals in the same way—hence why, as often as not, the settlements are taking place.

[Lord Hendy (Lab)]

Of course; that is always the way whenever there is litigation. Whatever the subject matter, people do not want the burden of defending the case and the people bringing the case do not want the burden of bringing it. That is just the reality of litigation.

I will say one last thing before I sit down. The argument that the noble Lords and noble Baronesses opposite have put forward is all about what they perceive to be the consequences of this matter, which my noble friend Lord Monks just addressed. But nobody can seriously advance the case that employers should have the right to dismiss anybody unfairly and without recourse to the law.

[Lord Vaux of Harrowden (CB)]

Does the noble Lord accept that these are not simply arguments that people around this Chamber are putting forward but matters that are in the Bill’s impact assessment? It is the Government’s own statement that the Bill will have these impacts. It is not being made up by any of us: the Government accept that this will be the impact.

[Lord Hendy (Lab)]

That may very well be, but it still does not remove the fundamental point: what is being proposed is a category of worker who can be dismissed unfairly for the most extreme reasons without resort to any justice.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Tuesday 3rd June 2025 Lords Chamber

Moved by

[Lord Hendy]

143: Clause 28, page 50, line 6, at end insert—
“(2A) In section 189 (complaint and protective award), after subsection (2) insert—“(2A) Any such declaration may be enforced in the High Court as if it were a declaration of the High Court and, for the avoidance of doubt, such enforcement may include—(a) an Order to comply with the declaration of the employment tribunal,(b) a Declaration that any dismissal which should have been but was not subject to compliance with section 188 or section 188A is void and of no effect, and(c) in relation to any failure to comply with an Order of the High Court, proceedings for contempt of Court.””Member’s explanatory statement
This amendment is intended to provide a remedy for a breach of s.188 or 188A given that the doubling of the protective award appears may be unlikely to deter employers such as P&O Ferries where the value of the protective award can be calculated to be outweighed by the benefit of reduced wages over time.

[Lord Hendy (Lab)]

My Lords, Amendment 143 is intended to provide a tougher remedy for breach of the obligation, which is a very modest one, to consult in cases of collective redundancy. At present, the remedy is an award of loss of earnings capped at a maximum of 90 days, which the Bill proposes to increase to 180 days. My amendment is not concerned with that. It proposes judicial intervention to prevent the breach, or at least to restore the position prior to the breach. So, where a declaration has been made by an employment tribunal, the union should be entitled to go to the High Court to obtain an order to enforce that declaration. The employment tribunal does not itself have the jurisdiction to make such an order; indeed, it does not have the power to enforce its own orders. That is why it is necessary for workers to issue further proceedings in the county court if their employer fails to pay a tribunal award.

The amendment makes it clear that any dismissal which should have been subject to Section 188 of the 1992 Act but was not will be void and of no effect, so the obligation to continue to pay wages and to honour the other incidents of employment will continue until the employer has fulfilled its legal duty. I should add, in case any of your Lordships doubt it, that the High Court does indeed have the power to restrain dismissal and declare a purported dismissal void and of no effect. The court has often done so where the dismissal was unlawful because, in breach of contract, the power is still more apposite where the unlawfulness is breach of a statutory duty.

Finally, the amendment puts beyond doubt that the normal consequences of non-compliance with an order of the High Court will apply: that the company and any officer personally frustrating the order may be subject to proceedings for contempt of court, including fine, sequestration and, in the most egregious cases, imprisonment.

The rationale for my amendment is obvious. We are talking about a situation in which an employer has broken or proposes to break the law by throwing a significant number of people out of work without properly consulting on measures which might have avoided that situation. A very limited financial penalty is plainly not enough to dissuade lawbreakers, as I think the noble Lord, Lord Hunt, recognised. What is required is not just a more dissuasive remedy but one which prevents the unlawful situation, or at least restores the situation to lawfulness, so far as it can be restored. Only the High Court has the power to do that.

There is another reason: the need to comply with international law which the UK has voluntarily ratified. Conventions 87 and 98 of the International Labour Organization will need more detailed consideration in later amendments, but for current purposes it is enough to note that, together, they require member states—not just ratifying states—to respect and protect freedom of association and the right to bargain collectively. Compliance with international law is the eighth of Lord Bingham’s principles of the rule of law, and the importance of compliance with international law was emphasised by the Attorney-General in a speech to the Royal United Services Institute last week. It matters not whether the provision in question relates to trade, the environment, security, labour or any other matter, and compliance is not restricted to the black letter of the treaty but also required of the decisions of the bodies appointed by the treaty to supervise compliance with it.

One such constitutional body of the ILO is the tripartite Committee on Freedom of Association, which consists of representatives of government, employers and workers. On 8 November 2023, it published its decision on a complaint brought against the United Kingdom by Nautilus International, the RMT, the TUC and a number of international trade union federations. This arose out of the P&O Ferries scandal mentioned earlier this evening. At 7 am on St Patrick’s Day 2022, the employer summarily dismissed 786 seafarers, with security guards escorting them from the ships past waiting coachloads of agency staff from third-world, cheap-labour countries recruited to replace them.

The report says that the committee notes the complainants’ indication that

“while breaches of the UK law entitle claims to be made in an employment tribunal, such claims are subject to statutorily fixed (and very modest) maxima; for this reason, the company was able to quantify with precision what the cost of the dismissals would be and to assess how long it would be before that cost could be recouped from future profits generated by the poverty wages and diminished terms and conditions of the new crews. The complainants thus allege that the dismissal of 786 seafarers to replace them with non-unionized agency workers constitutes an act of anti-union discrimination. The complainants further allege that the existing legislation is insufficient to deter anti-union discrimination as in practice, employers can, on condition that they pay the compensation prescribed by the law for cases of unfair dismissals, dismiss any worker for being a trade union member with better terms and conditions under a collective agreement. The Committee recalls in this respect that protection against acts of anti-union discrimination would appear to be inadequate if an employer can resort to subcontracting as a means of evading in practice the rights of freedom of association and collective bargaining … The Committee considers that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities … The Committee recalls that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress … Furthermore, the compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future … The Committee therefore requests the Government to ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress”.

Of course, there the committee considered that the collective dismissals were in order to avoid long-standing collective agreements which provided for notice of dismissal and consultation over proposed redundancies, which it regarded as anti-union discrimination. That situation will not occur in every collective redundancy—of course that is the case—but it will be true in many, though not all, collective redundancy situations. I should add that what we are looking at here are really bad employers. The remedy that I am proposing will not be used against good employers that do their best to deal with the situation.

The tribunal remedies which the committee considered very modest were not just for failure to consult over collective dismissal but included compensation for unfair dismissal. Here we are considering the even more modest, statutorily capped compensation for failure to consult. As the committee held, what is needed are

“sufficiently dissuasive sanctions and prompt means of redress, emphasising reinstatement as an effective means of redress”.

Only an injunction will achieve that outcome. That would have stopped P&O Ferries in its tracks.

I say to my noble friend the Minister that I can see no reason not to add this remedy to those available to restrain such unlawful activity. While the increase in maximum award, from 90 to 180 days—as the tribunal has to assess compensation as what is just and equitable up to that cap—is not sufficient in itself, since injunctions are available for breach of contract, why are they not for breach of statute as well? I beg to move.

[Lord Davies of Brixton (Lab)]

I thank my noble friend for his powerful and clear speech; he has said it all. I just want to add that this issue has arisen from the P&O scandal that took place three years ago. The maritime unions are particularly concerned about this, and I hope that my noble friend the Minister will be able to provide some comfort for the arguments that have been presented. The issue of pre-emptive injunctive relief for seafarers and other workers is a crucial issue and it is possible that we will need to return to it on Report.

--- Later in debate ---

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

My Lords, I thank the noble Lord, Lord Hendy, for tabling Amendment 143.

The Government agree that employers should not be able to deliberately ignore their obligations, and it should never be financially beneficial to do so. However, this amendment would offer a disproportionate response to address the issue. First, employment tribunals have jurisdiction over the majority of employment matters, including the enforcement of protective awards in cases of collective redundancy. It would not be appropriate to amend this jurisdiction solely for collective redundancy cases and it would lead to a disparity within the legal structure governing employment rights and their enforcement.

Furthermore, Section 15 of the Employment Tribunals Act 1996 already offers routes for affected individuals to pursue unpaid employment tribunal awards via the county courts, for England and Wales, and the sheriff courts, for Scotland. Finally, the amendment may have the unintended consequence of an increase in scenarios where employers are forced to become insolvent in response to both paying a protective award and requiring the reinstatement of affected employees.

Responsible employers across the country already go further than the current obligations to consult collectively. They agree with the Government that collective consultation with their workforce is a valuable tool in finding solutions to some of the challenging situations that employers find themselves in. Clause 29 closes a loophole in our collective redundancy legislation which meant that P&O Ferries could not be prosecuted when it dismissed people without warning, including because they worked abroad on foreign-registered ships. This goes some way to addressing the ILO’s concerns about the lack of an effective remedy. Our measure to confer powers on Ministers to create a mandatory seafarers’ charter will also help to create a level playing field in the sector and prevent such events happening again. A couple of amendments in subsequent groups will address that issue.

Doubling the protected period means that employees who were not afforded any consultation when being made redundant will now be awarded up to 180 days’ pay. Employment tribunals can award a further uplift of up to 25% where an employer unreasonably fails to comply with the code of practice on dismissal and re-engagement. Taken together, these measures increase the potential statutory payout per person far beyond that which P&O Ferries offered to dismissed employees. This clause will provide a balanced approach that gives certainty to employers, employees and tribunals, and will provide an increased deterrence against deliberate breaches of the collective redundancy requirements, without disproportionately penalising employers which attempt to comply with their obligations.

I hope that this provides some assurance to my noble friend, and I therefore ask that his amendment be withdrawn.

[Lord Hendy (Lab)]

My Lords, I am grateful to my noble friend Lord Davies for his support. I am also grateful to the noble Lord, Lord Sharpe, for his contribution. In response to him, I note that the proposal is not that employment tribunals should make a declaration that a dismissal was void and of no effect. Instead, the idea is that the High Court will make a declaration based on another declaration already made by the employment tribunal that the employer has breached the law by failing to consult—or by failing to consult properly.

The remedy I am proposing, since it is going to be in the hands of a High Court judge, will not be granted for technical or administrative errors; it will be for only the most egregious breaches.

On the point that an injunction might be granted months later, that cannot be so because delay will always defeat an injunction. Injunctions are only ever granted if the application is brought in a timely fashion, and whatever the court orders can be fulfilled.

I am grateful for the Minister’s very full response. I am not sure that the measure I propose is disproportionate —it is intended only for the most egregious breaches of the duty to consult—or that it distorts the remedies available for employment matters. As my noble friend pointed out, employment tribunal awards already have to be enforced in the civil courts and not by tribunals themselves. I am not sure about the unintended consequences. I know everything he says about The Seafarers’ Charter; my concern is with those on land. I have heard everything he says with sympathy, and on that basis, I beg leave to withdraw my amendment.

Amendment 143 withdrawn.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Thursday 5th June 2025 Lords Chamber

Moved by

[Lord Hendy]

152: Schedule 4, page 195, line 4, leave out from “matters” to end of line 8 and insert “in relation to school support staff which relate to or are connected with any of those set out in section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992”
Member’s explanatory statement
This amendment is intended to make the Negotiating Body a collective bargaining body rather than a consultative body by leaving it to the industrial parties to determine the matters which require to be collectively bargained (within the statutory definition of collective bargaining in s.178) and so partially fulfils the requirements of the ILO for free and voluntary collective bargaining.

[Lord Hendy (Lab)]

My Lords, I will speak to Amendments 152 to 179, which are intended not to undermine but to improve the SSSNB.

First, I will say a word about collective bargaining relevant to these amendments and to later amendments dealing with that subject. The term was coined by Beatrice Webb in 1891. It means negotiations between one or several trade unions on the one side and one or more employers or employers’ associations on the other, with a view to agreeing rates of remuneration and other terms and conditions of employment for a defined group of workers. The term is defined in Section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992, which sets out various matters which may form the basis of such negotiations—not just pay, terms and conditions, but including dismissals, allocation of work, union facilities, dispute resolution machinery, and so on. The International Labour Organization—ILO—has a similar, but less detailed, definition in Convention 154.

Collective bargaining may be on a sector-wide basis across a particular industry or it may be confined to a particular enterprise. Where there are sectoral agreements setting minimum terms, they are usually improved upon by enterprise agreements with individual employers in the sector. The UK was the first country to establish widespread collective bargaining coverage. By 1948, the then Prime Minister could say in a broadcast to the nation that:

“We have built up in this country a system of collective bargaining without parallel in the world”.


That coverage was built upon two pillars: the statutory wages councils introduced by Winston Churchill in the Trade Boards Act 1909, latterly regulated by the Wages Council Act 1979, and the voluntary joint national councils, or Whitley councils, pursuant to the reports of the Reconstruction Committee after the First World War by JH Whitley. Governments of all persuasions were committed to the promotion of collective bargaining, particularly because of its very positive effect on productivity in both world wars. In consequence, collective agreement coverage of UK workers was in excess of 80% between 1945 and 1980.

Significantly, the proportion of workers covered by only an enterprise-level collective agreement was almost insignificant and had grown to only 9% by the late 1970s. The dismantling of sectoral collective bargaining since 1980 has produced a steady downward curve in the coverage, which was not halted by the introduction of the recognition machinery for enterprise-level bargaining in 2000. The percentage of workers whose terms are negotiated now is likely to be around 25%. The remaining three-quarters must take what they are offered.

The staggering decline from over 80% coverage to 25% has had a devastating effect on workers. The stagnation in the real value of wages and the meteoric rise in zero-hours contracts and job insecurity can be attributed, at least in part, to that dramatic decline. To achieve the growth and improvement in living standards rightly sought by the Government necessitates restoration of extensive collective bargaining coverage.

There are considerable benefits to that. A few years ago, the Supreme Court of Canada pointed out that:

“The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work. Collective bargaining is not simply an instrument for pursuing external ends ... rather [it] is intrinsically valuable as an experience in self-government ... Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in the workplace”.


It has also been said that collective bargaining

“is the mode in which employees participate in setting the terms and conditions of employment, rather than simply accepting what their employer chooses to give them”.

Workers enjoy the benefits of increased wages and improved minimum terms and conditions. Trade unions can negotiate on a sector-wide stage without diminishing their ability to negotiate better terms locally.

The benefits of sectoral collective bargaining extend to employers too. Sectoral collective bargaining prevents undercutting and steadies labour costs. Employers in the same sector must compete instead in investment, innovation, efficiency and productivity—the fields of competition which foster growth. Employers, especially SMEs and micro employers, benefit from not having to research or negotiate wages with their workers. Instead, the minimum terms and conditions for their sector are contained in the sectoral agreement.

Employers profit from the increase in consumer demand, consequent on increased earnings generally. Governments enjoy increased tax from higher earnings and the diminished need to fund social security payments to subsidise low wages. Sectoral collective bargaining has proved to reduce inequality, not just between high and low earners but between women and men, and to reduce the pay gap suffered by disabled and ethnic-minority workers.

There is much research from academic institutions to support these conclusions, as well as from the ILO, OECD and IMF. In 2024, the European Union went so far as to adopt a directive requiring member states that have less than an 80% coverage of collective agreements to put in place an action plan to achieve such coverage.

A letter in last week’s Financial Times pointed out that Sweden—notwithstanding its conversion over the last 30 years from neosocialism to neoliberalism—preserved, at the insistence of employers and unions, the very extensive sectoral collective bargaining that characterises Nordic industrial relations.

Collective bargaining, and in particular sectoral collective bargaining, is not just desirable in itself; international law requires the UK to promote and encourage it. That is a subject I will return to in the next group.

It is unclear why the Bill does not stipulate the creation of collective bargaining bodies. The UK’s long and successful experience of statutory wages councils and voluntary joint national councils provides fine precedents. There are many other such precedents as well.

With that introduction, I turn to the proposition that the SSSNB is not the collective bargaining forum it should be, and which many unfamiliar with the detail of the Bill assumed it would be. To save time, I will also refer to the adult social care negotiating body—I wish the Government had chosen easier acronyms—since the Bill’s proposals and the arguments about them are virtually identical.

The relevant features are these. First, the Bill expressly states that nothing in the SSSNB is to be regarded as collective bargaining as defined by Section 178 of 1992 Act, and that any agreements reached are not to be regarded as collective agreements. The ASCNB is slightly different, in that the relevant Minister is given power to exclude the application of Section 178.

Secondly, the Bill defines a negotiating body, but its functions do not include negotiation. The parties have no power to decide for themselves the matters they wish to discuss and are confined to the four subjects permitted to each by the Bill, plus any additions conferred by the Minister. The very limited subjects so far permitted exclude, for example, work organisation, diversity and inclusion, eradication of pay gaps, health and safety, deployment of new technology, formulation of a dispute resolution procedure and the legal status of workers in the sector.

Thirdly, the Bill gives the Minister power to make regulations as to the nature of the consideration the negotiating body must give to the authorised subjects, with power to direct specific factors the body must take into consideration and any conditions that must be met in reaching agreement. Matters can be discussed by the SSSNB only with the permission, or on the direction, of the Minister, who can also specify matters that may not be discussed.

Fourthly, if the body reaches an agreement, the Minister can override it and require reconsideration, specifying factors that must be taken into account and conditions that must be met to reach a reconsidered agreement acceptable to Minister. Ultimately, the Minister can override agreements of the negotiating body.

Fifthly, if the negotiating body fails to agree, the Minister has the power to assume its functions and impose a settlement, regardless of the wishes of the parties, who may, of course, prefer their own dispute resolution procedure, or conciliation, mediation and arbitration by a third party in whom they have confidence.

Sixthly, terms agreed and approved, or simply dictated, by the Secretary of State will be set for all relevant workers. Consequently, any genuine collective agreement for more favourable terms will be void. Far from promoting collective bargaining, the effect of this provision is to preclude it.

--- Later in debate ---

[Baroness Smith of Malvern (Lab)]

I am desperately searching for the note in my folder on yachts. I may have to write to the noble Baroness on that issue later.

I thank my noble friend Lord Hendy for his introduction to these amendments. As others have said, it was an interesting and important history of the progress that has been made in this country through a recognition of the strength of the collective voice of workers represented through the trade union movement, which is, of course, the basis of our party on this side of the House. Although I will not be able to go as far as my noble friend would want me to go in this, I hope I can reassure him that I think these proposals for the SSSNB make considerable progress in recognising the need for the voice of school support staff to be properly heard in bargaining about pay and conditions and improving the training and development options for those staff.

I know my noble friend Lord Hendy has had the opportunity to meet with my noble friend Lady Jones to talk about these principles. I hope he recognises, as I certainly do, the phenomenal work that she and other members of the team have done in this House in taking forward this piece of important legislation for the Government and the difference it is making to the rights of workers across this country. Those of us on this side of the House are proud of this piece of legislation and the work that has gone into it.

I can also reassure my noble friend that this Government support the work of the ILO, value its role in upholding and enhancing workers’ rights globally and remain committed to upholding international standards. In fact, the UK is in full compliance with all our international obligations on collective bargaining.

I turn to the SSSNB and the associated amendments in this group. I know my noble friend is here for the other elements of negotiating bodies that my noble friend Lord Hendy referenced, but first I shall speak to Amendments 152, 154 to 158, 161 and 173 to 179, which relate to collective bargaining, the role of the Secretary of State and concerns about the remit of the SSSNB.

The existing remit is broad. It covers the areas that will help to address the recruitment and retention challenges that state-funded schools are facing for support staff. As it is a negotiating body, employee and employer representatives will be able to meaningfully negotiate on pay and conditions as well as advise on training and career progression. As I spelt out in the previous group of amendments, this is a major step forward in the process for supporting our school support staff, who play such an important role in our schools.

As it is a statutory body, it is essential that agreements reached by the SSSNB can be imposed in contracts only through ratification by the Secretary of State, and that the interests of the Secretary of State are represented on the body with a non-voting representative. I agree with the noble Baroness, Lady Barran, that the current wording provides the appropriate specificity on the remit for this body, appropriately involving the Secretary of State in the statutory role of the body but making a major step forward in enabling employees and employer representatives to negotiate on those areas.

I turn to Amendments 153, 159, 160, 162, 167 and 170, which relate to those who work under a contract that is not a contract of employment—in other words, to the remit of the employees covered by this body. The vast majority of school support staff are employed by local authorities, governing bodies and academy trusts as employees. The remit for employees is consistent with the approach taken in the 2009 legislation that first established the SSSNB and the current remit of the NJC. I hope that answers the question asked by the noble Baroness, Lady Barran, about the definition. We are content that the policy intent of the SSSNB provisions is met through the current remit, so the amendments are not required. They would broaden those under the auspices of the SSSNB in a way that would distort its role and responsibility, and they would introduce the sort of complexity that other noble Lords have talked about.

The remainder of the amendments in this group—Amendments 163 to 166, 168, 169, 171 and 172—relate to the protection of more favourable terms in staff contracts. As drafted, the Bill does not require regulations ratifying agreements of the SSSNB to impose limits on the terms and conditions under which school support staff can be employed. The intention is for support staff in all state-funded schools in England to benefit from a core pay and conditions offer, while providing the flexibility to respond to local circumstances above minimum agreements reached, and with more favourable pay and conditions for individuals protected.

We are taking concerns about the protection of individuals and room for innovation seriously. We will be consulting on the remit of the SSSNB and calling for evidence on terms and conditions in the summer. I therefore have some sympathy with those who might express concerns about whether there is sufficient protection for individuals, and I hope we will be able to clarify that.

I will not be able to go as far as my noble friend Lord Hendy asks the Government to go in his amendments, but I hope he will recognise that, in line with the progress of the collective representation of workers that he identified in his speech, this development under this Government represents a considerable improvement in the position of our vital school support staff. I hope that, on that basis, he will feel able to withdraw his amendment.

[Lord Hendy (Lab)]

My Lords, I am most grateful to the noble Baroness, Lady Jones of Moulsecoomb, for her fulsome support of the amendments.

I am of course shocked that the noble Baroness, Lady Barran, and I have reached a point of disagreement, and will make one or two points arising from what she said. She thinks that I was wrong to refer to zero-hours contracts. Of course, I accept what she said, that there presently are no zero-hours contracts in the school sector, but, as I am sure she is aware, there are zero-hours contracts in the university sector, and the fear is that they might then be introduced into the school sector.

The noble Baroness was worried about the reference to non-employees—that is, self-employed workers. Again, the problem is not so much the existing situation but fear of the future. The self-employed sector now has 5 million workers, who, on average, earn a lot less than employed workers. It is a growing sector, and the fear is that employers will resort more to the device of self-employment to avoid the consequences of employment.

I am grateful to the noble Lord, Lord Sharpe of Epsom, for his thoughtful contributions. He said that he thought the inclusion of the self-employed would bring ambiguity and be unworkable, but I respectfully disagree. The point is this: if people are doing similar work but with a different legal status, similar terms should apply to them. If there are few people, or none, in that category, I cannot imagine for a moment that the negotiating body, unions or employers will wish to say anything about it. What I am suggesting by enlarging the remit of the bodies is not that they should be compelled to negotiate all the matters under Section 178, but that it is an option open to them if those parties feel that it is profitable for them to negotiate those things.

The noble Baroness, Lady Barran, was uncomfortable with my opposition to the Minister’s power to override agreements, or indeed disagreements, in the negotiating body. I point out that, in truly voluntary and free collective bargaining, it is always possible to have tripartite collective bargaining between the Government, employers and unions—but that is not what this body is. This body is bipartite, but with the addition of third parties and the power in the Minister to override any agreement that is reached. That does not seem to be compatible with proper collective bargaining.

I know your Lordships want to move on, so I will not deal with any more detail, but will make just one more point. The noble Lord, Lord Sharpe, was against the inclusion of dispute resolution procedures, including arbitration. I make the point again that the purpose is not to impose this on the parties but to enable them to choose their own means of resolving disputes—whether that is conciliation, arbitration or some other means—and not to leave it to the Minister.

I am very grateful to my noble friend Lady Smith of Malvern for her thoughtful and full response. She is right, of course. I do not think she goes as far as I would like her to, but I understand the reasons she does not. I agree that what is proposed in the Bill for the SSSNB is a “considerable improvement”, to use her words, on what exists. I accept too that it is a step on the road to proper collective bargaining in due course. I am very grateful for the two meetings I had with my noble friend Lady Jones of Whitchurch. I was honoured and grateful to be allowed to spend time discussing my concerns with her. On that basis, I am very happy to withdraw my amendment.

[Lord Sharpe of Epsom (Con)]

Can I seek a point of clarification on the noble Lord’s clarification, which I am very grateful for? Was his argument that extending and future-proofing—I think those were his words—this for the self-employed is because he feels that there will be more self-employed people as a consequence of this Bill?

[Lord Hendy (Lab)]

No, not at all. Growing self-employment has been a trend for the last 20 years, which has perhaps accelerated a bit in the last 10 years. The worry is that school employers may adopt the device of allocating work to the self-employed, rather than to employed persons. If that is the case, there ought to be room for the negotiating body to deal with that issue and the consequences of it. I beg leave to withdraw my amendment.

Amendment 152 withdrawn.

--- Later in debate ---

Moved by

[Lord Hendy]

181: Clause 37, page 62, line 3, leave out from “Body” to end of line 4 and insert “to be selected by agreement between the union officials and employers’ representatives who are members of the Negotiating Body and, in the event of a failure to agree, chosen by ACAS;”
Member’s explanatory statement
This amendment is one of several intended to make the Negotiating Body a bilateral collective bargaining body, in this instance to allow the industrial parties to select the Chair instead of it being a ministerial choice.

[Lord Hendy (Lab)]

I apologise to noble Lords for inflicting my voice on them again. The amendments in this group are intended to convert the ASCNB into a collective bargaining forum and achieve the purpose we have already discussed for the SSSNB.

I mentioned earlier that there is some relevant international law. I propose now to deal with it. The UK is bound by the international treaty provisions it has ratified. That applies no matter the subject matter of the treaty obligation—whether it be trade, security, environment, labour, extradition or whatever. The obligation of conformity is not confined to the black letter of the treaty provision. It applies also to the decisions of the bodies on which the treaty has constitutionally bestowed the power of deciding whether or not a state is in compliance. If a state does not like the treaty provisions or decisions made under it, it has the right to denounce the treaty and cease to be bound by it.

The great jurist Lord Bingham made state compliance with international obligations his eighth principle of the rule of law. He said in his seminal book on the subject that

“the rule of law requires compliance by the state with its obligations in international law as in national law”.

Consistently with this, the current Ministerial Code binding on British Ministers places on them an

“overarching duty to comply with the law, including international law and treaty obligations”.

The point was reinforced by the noble and learned Lord the Attorney-General in this House on 26 November 2024, when he said of compliance with international law:

“We should all be immensely proud of it, and this Government will seek at every turn to comply with our obligations”.—[Official Report, 26/11/24; col. 680.]


He developed the point in a lecture to the Royal United Services Institute last week.

The relevant international law is based on two legal instruments. The first is the ILO, which since its founding in 1919 has acknowledged collective bargaining as an instrument of social justice. The 1944 ILO Declaration of Philadelphia, part of the ILO constitution, recognises the obligation to further

“the effective recognition of the right of collective bargaining”.

The 1998 ILO Declaration on Fundamental Principles and Rights at Work reiterates that

“all Members … have an obligation … from the very fact of membership in the Organization, to respect, to promote and to realize … the principles concerning the fundamental rights”,

which include the effective recognition of the right to collective bargaining.

ILO Convention 98, Right to Organise and Collective Bargaining Convention, 1949, was ratified by the United Kingdom almost 75 years ago on 20 June 1950. It is one of the fundamental conventions, binding, regardless of ratification, as a consequence of membership of the ILO. Article 4 imposes the following obligation on states:

“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”.


The Government were recently reminded of that obligation by the decision earlier this year of the ILO tripartite Committee on Freedom of Association, on which the UK is represented, on a complaint against the UK arising out of the Supreme Court judgment in the case of Deliveroo in 2023. The committee had previously stated in the case of the United Kingdom that

“whereas governments are not under a duty to enforce collective bargaining by compulsory means, they are under a duty to encourage and promote voluntary collective bargaining in good faith between the parties”.

The Bill is the opportunity to fulfil that obligation. As yet, it does not.

Turning from the global to the European, I refer to the European Social Charter of 1961. Article 6, headed “The Right to Bargain Collectively”, materially provides:

“With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake … to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements”.


The Parliamentary Assembly of the Council of Europe, on which a number of your Lordships sit, elects a supervisory body of jurists called the European Committee of Social Rights, which regularly includes eminent UK nominees, with the purpose of examining compliance by member states with the provisions of the charter which they have voluntarily ratified. Decisions of that committee are reported to the Committee of Ministers, which includes the UK Foreign Secretary.

The European Committee of Social Rights has held of the obligation of states under Article 6.2 of the charter that

“if the spontaneous development of collective bargaining is not sufficient, positive measures should be taken to facilitate and encourage the conclusion of collective agreements”

and that

“where only 30% of the total number of employees are covered by collective agreements, voluntary negotiations are not sufficiently promoted in practice”.

The level of collective bargaining coverage in the UK is now significantly below 30% but, in any event, it is clear that spontaneous development of collective bargaining is not occurring in fields that desperately need it, such as social care. The duty on the UK to promote collective bargaining, at least in these sectors, is thus triggered. The committee has also held:

“States Parties should not interfere in the freedom of trade unions to decide themselves which industrial relationships they wish to regulate in collective agreements”.


That is a matter to which the ILO Committee on Freedom of Association has also turned:

“It is for the parties concerned to decide on the subjects for negotiation … Matters which might be subject to collective bargaining include the type of agreement to be offered to employees or the type of industrial instrument to be negotiated in the future, as well as wages, benefits and allowances, working time, annual leave, selection criteria in case of redundancy, the coverage of the collective agreement, the granting of trade union facilities, including access to the workplace beyond what is provided for in legislation etc.; these matters should not be excluded from the scope of collective bargaining by law”.


Yet in the subsectors of adult social care and school support staff, this Bill proposes to violate than principle. The subject matter which the two negotiating bodies are permitted to discuss is limited to that specified in the Bill, to which the Minister may unilaterally add. Indeed, as we have already discussed in relation to school support staff, their negotiating body is not permitted to discuss even the matters within its statutory remit, unless directed or expressly permitted by the Minister.

Both the social rights committee and the ILO have made it clear that self-employed workers should not be excluded from collective bargaining machinery, a matter which we discussed earlier.

I also draw attention to Article 6.3 of the charter, which I did not mention earlier. It requires that

“conciliation, mediation and/or arbitration procedures must be introduced to facilitate the settlement of labour disputes”.

The European Social Rights Committee has held that

“recourse to arbitration should be voluntary (subject to the agreement of the parties) … All arbitration systems must be independent, and the outcome of arbitration may not be predetermined by pre-established criteria. Any form of compulsory recourse to arbitration is a violation of this provision”.

Yet, under this Bill, the remit open to negotiating bodies does not permit them to agree any kind of dispute resolution procedure. Quite the contrary: as we have seen, the Minister has power to override both the agreement of the industrial parties or their disagreement, and to impose an outcome on them—in my view, a wholly impermissible form of compulsory arbitration.

There is no disputing that the UK permits collective bargaining. However, the duty on states ratifying this provision of the charter, as the UK did on 11 July 1962, is not merely to permit; the duty is to promote collective bargaining machinery. It is true that we have legal recognition machinery in the 1992 Act, Schedule A1. However, there is no mechanism in UK law to establish or support sectoral collective bargaining. This Bill is the opportunity to establish that in the many sectors crying out for it, including social care.

I turn to my amendments in this group. Amendment 181 would allow unions and employers to choose their own chair. Amendment 182 would restrict membership to persons nominated by unions and employers. Amendment 183 would restrict third parties to those agreed by unions and employers, and to ensure that they will be in a minority. Amendment 184 would allow discussion of Section 178 matters. Amendment 186 would add training and career progression dispute resolution machinery, discipline and grievance procedures, and anything else the unions and employers want to discuss, to the list of permitted topics. Amendment 187 would broaden the definition of social care worker to that in Section 20 (3) of the Courts and Criminal Justice Act 2015.

Amendment 191 would substitute, where there is failure to agree, a dispute resolution machinery in place of the unilateral power of the Minister to substitute his decision. Amendments 193, 194, 198 and 199 mirror Amendment 192 from the noble Baroness, Lady Noakes, making the output of the process a minimum floor permitting subsequent or indeed prior agreements for more beneficial terms. Amendment 197 would bring in the self-employed, so the arguments are much the same as we have already covered.

As your Lordships will have noted, I also seek to oppose Clause 51 standing part. It gives power to permit the Minister to disapply Section 178 to the adult social care body. I will not repeat the arguments. I beg to move.

--- Later in debate ---

Finally, the noble Lord, Lord Hunt, said that he felt that the remit of the negotiating body was not appropriate for the social care sector, as a one-size-fits-all approach will not work. The remit, as I have said, is stated in the Bill: pay, terms and conditions and other matters. Our discussions with stakeholders will enable us to get it to the right place. I emphasise again that we should welcome this as a novel and direct approach to improving the pay, conditions and status of care workers, which is something we all want to do. I hope the noble Lord will feel able to withdraw his amendment and I maintain that Clause 51 should stand part of the Bill.

[Lord Hendy (Lab)]

My Lords, I thank everybody who has participated in this debate. In particular, I thank the noble Baronesses, Lady Browning and Lady Ritchie, for their Amendment 185. I completely support the idea that training and education should be part of the remit of the adult social care negotiating body. As the noble Baroness, Lady Browning, touched on, training and career progression are expressly part of the remit of school support staff and it seems inexplicable that they are not part of adult social care as well.

I agree with the noble Lords, Lord Palmer and Lord Prentis, that the adult social care negotiating body, in establishing minimum terms and conditions, will play a key part in the improvement of the provision of social care and of course the improvement of the lives of those who provide that care. I was moved by the fact-filled description by my noble friend Lord Prentis of the need for the adult social care negotiating body in that sector.

I realised the other day that the noble Lord, Lord Hunt, and I have known each other a lot longer than I remembered. He mentioned going to the retirement dinner of Albert Blighton, formerly legal officer of the Transport and General Workers Union, and I was there too, but I had forgotten. Of course, I do not agree with much of what the noble Lord has said today.

As for the noble Baroness, Lady Jones, and a certificate in relation to the European Human Rights Convention, I have not argued that there was any incompatibility with that convention. My arguments were about incompatibility with ILO provision and the European Social Charter—two very different things. States cannot pick and choose which of the obligations binding on them they wish to abide by.

With the greatest of respect to the noble Lord, Lord Hunt, I think he misunderstands the nature of collective bargaining—not that I have done much of it myself, but I have been present when it happens and have had a lot to do with its consequences. It is not necessarily a confrontational process; it works collaboratively. That is why it has been so successful for decades—indeed, centuries—now. I was not suggesting—and do not think it ever is—that it is a legalistic process; it is an informal process.

The noble Lord, Lord Hunt, also perhaps misunderstood what I was saying. I was suggesting not a dominant role for trade unions but a balanced role, where trade unions and employers have equal power. It is in their mutual interests to agree future terms and conditions and so on. I say to the noble Lord, as I said to the noble Lord, Lord Sharpe, that I am not suggesting that the subject matter for negotiation should be confined to Section 178 matters, but simply that those should be permissible matters for discussion, and that parties should be allowed to resolve whatever differences may occur between them by negotiation or by a dispute resolution mechanism chosen by them.

In relation to non-employment, or the use of my word “engagement” rather than “employment”, the purpose of that is to ensure that self-employed workers in the adult social care sector are covered by the benefits of whatever negotiations emanate from the social care negotiating body. Why not? Why should they not have the benefit of minimum hours, terms and conditions, and so on? In this sector, there are a lot of self-employed workers, because employers have resorted to that device.

I am grateful to my noble friend the Minister for her full response. I disagreed with one or two points that she made. I do not think it is right to say that Section 178 of the Act is confined to local agreements; that provision in the legislation, of very long standing, applies to all collective bargaining, sectoral or local. I noted that she did not say anything about the international law obligations on which my speech centred. Nevertheless, I am happy to beg leave to withdraw the amendment.

Amendment 181 withdrawn.

--- Later in debate ---

Moved by

[Lord Hendy]

203: After Clause 54, insert the following new Clause—
“Sectoral collective bargaining(1) The Secretary of State may make regulations for the establishment of Statutory Joint Industrial Councils.(2) The regulations shall provide that—(a) a Statutory Joint Industrial Council shall be composed of equal numbers of—(i) nominees of employers’ associations (or nominees of employers) which appear to ACAS to represent employers in the sector, and(ii) nominees of independent trade unions which appear to ACAS to represent workers in the sector,(b) a Statutory Joint Industrial Council shall have the function of conducting collective bargaining to—(i) establish levels and rates of remuneration (including pensions), terms, conditions and other benefits for those who work in the particular sector of the economy;(ii) determine any other matter within the scope of section 178(2) of the Trade Union and Labour Relations (Consolidation) Act 1992 (collective agreements and collective bargaining);(iii) formulate its constitution and procedural arrangements including a dispute resolution procedure; (iv) resolve any other matter which the Statutory Joint Industrial Council desires to consider,(c) any agreements reached by a Statutory Joint Industrial Council shall apply to the workers and employers in the relevant sector save to the extent that a previous or a subsequent contract or collective agreement makes more favourable provision,(d) it is for the Secretary of State (in the light of advice from ACAS) to determine what constitutes a sector of the economy for the purposes of establishing a Statutory Joint Industrial Council, and(e) a Statutory Joint Industrial Council may only be made following consultation with—(i) nominees of employers’ associations (and/or nominees of employers) which appear to ACAS to represent employers in the sector, and(ii) nominees of independent trade unions which appear to ACAS to represent workers in the sector.”Member’s explanatory statement
This amendment is intended to enable regulations to be laid for sectoral collective bargaining in particular sectors of the economy. The concept of the Statutory Joint Industrial Council is taken from s.90 and Schedule 8, Employment Protection Act 1975, reproduced in Part II of the Wages Councils Act 1979.

[Lord Hendy (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Jones of Moulsecoomb, and the noble Earl, Lord Clancarty, for supporting my Amendment 203. It is designed to give the Secretary of State power to establish, after consultation, a national statutory joint industrial council in any sector of the economy which appears to him appropriate. The noble Baroness, Lady Jones, asked me to give her apologies to the Committee for having had to leave.

Amendment 203 is not intended to be mandatory; it is purely discretionary, leaving it up to the Secretary of State as to whether or not he or she wishes to institute a statutory joint council. The negotiating bodies that we have already discussed this afternoon are, without doubt, an improvement on the current situation, especially in light of my noble friend Lord Prentis’s earlier speech on adult social care.

In these circumstances, I regret that I take the role of Oliver Twist and ask for more. But the fact is that many sectors are crying out for sectoral minimum terms set by negotiation—social care and not just for adults, agriculture in England, hospitality, office cleaning, food delivery, parcel delivery, warehousing, garment manufacture, seafaring, bus services, and so on. There are other groups, such as teachers, where there is established collective bargaining across the sector but not on pay. The omission from the Bill of a power to establish sectoral collective bargaining in any sector seems inexplicable.

--- Later in debate ---

[Lord Hendy (Lab)]

My Lords, I am grateful to all noble Lords who have spoken in this debate, in particular my noble friends Lord Barber, Lady O’Grady and Lord Monks for their Amendment 322, which I support. I support any machinery for extending the hearing of the worker’s voice. My preference would be for collective bargaining rather the negotiating body model in the Bill, but if we cannot have the first, let us have the second.

I had the pleasure of spending time with the JIB, which was referred to by the noble Lord, Lord Barber. It is a good example of successful sectoral collective bargaining. Earlier this afternoon, I tried to outline the benefits of collective bargaining. No one in the House has so far denied those benefits; indeed, the noble Baroness, Lady O’Grady, described the disbenefits of not having collective bargaining, which are, I think, acknowledged by my noble friend the Minister. Instead, the defence is that collective bargaining is unworkable or too burdensome. However, the JIB and other extant joint national councils of a voluntary nature, as well as the Whitley councils in the public sector, show that they are not unworkable or burdensome and that sectoral collective bargaining works.

I make two points to the noble Lord, Lord Palmer. First, collective bargaining, even at the enterprise level, benefits non-unionists as well as unionists. Collective bargaining may be reached between a trade union representing only a proportion of the workers in a bargaining unit, but the output covers all workers in the bargaining unit. Secondly—this is a point that I need to make in relation to the contribution from the noble Lord, Lord Sharpe—collective bargaining has been proven not to create unemployment; academic studies and, indeed, studies by the OECD have demonstrated that. In response to the noble Lord, I make the point, in terms of the EU comparison, that unemployment differs from one European country to another. However, one thing is absolutely clear: unemployment in European countries is not caused or related to the extent of collective bargaining coverage.

The noble Baroness, Lady Meacher, asked about the non-membership of trade unions. Tangentially to that, I will make one point: one of the reasons for falling membership of trade unions in this country—and, indeed, in other countries—is the decline in collective bargaining. People will not join trade unions when they know that the trade union will not have a voice in setting their terms and conditions. They would be paying a contribution as just a gesture, without any hope of getting anything back.

I will not deal with all the points made by the noble Lord, Lord Sharpe, but there was one point about the definition of sectors. That has always been problematic, but it has always been resolved. For decades, there have been arguments about the definition of sectors for the purposes of wage councils and joint national councils, but, ultimately, they were all resolved.

In response to my noble friend the Minister, I want to pick up one small point in relation to the proposal that ACAS should have restored to it the duty to promote collective bargaining. ACAS had that duty for decades, and it did not mean that ACAS was partisan in any way. ACAS has always been respected as impartial and independent; having that duty again, in my respectful opinion, would not open it to that sort of criticism.

I recognise, as my noble friend the Minister asked me to, that what is proposed in this Bill is a major step forward. There can be no doubt about that. I acknowledge her commitment to go further; she knows that I would of course prefer to go further now, but I respect her commitment to support sectoral collective bargaining. On that basis, I beg leave to withdraw the amendment.

Amendment 203 withdrawn.

--- Later in debate ---

My noble friend’s amendment does not seek to prejudice outcomes or impose immediate regulatory burdens; rather, it calls for a measured review to examine whether the law as it stands adequately reflects the realities of digital casting platforms and whether performers are appropriately protected in this rapidly evolving environment. I therefore hope that the Government will look favourably on this modest and proportionate proposal. Such a review could, in time, help to ensure that this vital part of our creative economy operates with the clarity, fairness and legal certainty that all participants, performers, casting professionals and platform operators deserve and require.

[Lord Hendy (Lab)]

My Lords, I added my name to this amendment, and the noble Earl, Lord Clancarty, and the noble Lord, Lord Freyberg, have said everything that I wanted to say. I just want to add that it has been a pleasure working with them and with my noble friend Lady McIntosh to endeavour to understand the nature of this dispute. It occurs to me, in the light of what we have been discussing this afternoon, that a good dose of collective bargaining and negotiation might come to the assistance of the parties.

[Baroness McIntosh of Hudnall (Lab)]

My Lords, I had not expected to speak at any point during this Bill, and I will do so now only very briefly to express my thanks to the noble Earl and his colleagues for praying my name in aid in relation to this amendment. I really just want to say that I may be the only person in the House—and I am certainly, I think, the only person in this Chamber—for whom a casting directory was the bible of my life for many decades. Therefore, I know exactly how important it is to performers that there should be a trusted published work of some kind to which they can refer their information which can then be the source of potential employment through the work of casting directors and other industry professionals.

I just say to the Minister, when she comes to consider this amendment—which, by the way, I do support, and I have nothing to add or anything I wish to contradict in what has been said so far—that it is important to recognise that this is an extremely delicate ecosystem in which there are many, many people who need to avail themselves, and have done over decades, as we have been told, of the kind of service that a casting director and a casting directory provide. Frankly, for most of all of our lives, it has been Spotlight, but it could be others. The people who need to avail themselves of that service are many in number, and the people who need to use it in order to find out about those people are much fewer in number—mostly casting directors. It is very important that they have a trusted source, that performers can rely on their information being carefully curated, looked after and protected in the way that the noble Earl and the noble Lord, Lord Freyberg, have already outlined, but that we do not disturb the particular delicate relationship between those two aspects of the way that the business works. While I am not in favour of exceptionalism on the whole, I think we do have to understand that this industry operates not always perfectly but certainly in an unusual kind of way, and it is necessary that it continue to do so with the right protections in place.

--- Later in debate ---

[Lord Jackson of Peterborough (Con)]

My Lords, I will speak very briefly to my Amendments 212 and 213. Naturally, I wholeheartedly agree with the excellent points made from our Front Bench by my noble friend Lord Hunt of Wirral, particularly on Amendments 210 and 213B.

My two amendments are probing amendments, essentially, and I think they are very sensible and reasonable. The perhaps slightly more contentious one would restrict these powers to businesses with over 250 employees. I cannot and will not rehearse the arguments my noble friend made about disruption, interference and taking resources and time away from the main job of work in the business. Interestingly, it could be “one or more” trade union officials, so it could be one but it could be 25 going into a small business. We do not know because the clause is drawn very widely and is very permissive. That is Amendment 213.

Amendment 212 is basic good manners and common sense. If you want to facilitate a good relationship between the trade union representatives—properly elected and appointed by the workforce—and the employers, you want an agenda and an objective place that you wish to reach. That might be to avoid industrial action, to look again at a pay offer, to discuss a suspension of a worker or something like that. But what is wrong with giving 24 hours’ notice? It takes the heat out of the potentially disputatious nature of the relationship that you might have between the employer and the trade union representative. I think it is just basic good manners and would make things work better. It does not diminish the role of the trade unionists and it does not undermine their integrity or their bona fides; it just says, “Let’s give 24 hours’ notice to enable a more fruitful and productive relationship to be expedited between the two sides”. For those reasons, I would like the Minister to at least consider the amendments, perhaps with a view to looking at them again on Report.

[Lord Hendy (Lab)]

My Lords, my Amendment 214 is designed to provide an effective remedy against an employer which defies an order of the CAC to provide trade union access. This is a situation where the trade union has applied to the employer for an agreement for access and been refused. The trade union has then gone to the CAC and succeeded in obtaining an order for access, which the employer has defied. The employer has had the opportunity to appeal to the EAT and has either declined to appeal or has had its appeal refused. In that situation, the Bill merely provides that a union can apply for a fine to be paid, not to it but to the CAC. That is no real deterrent and no incentive either for the union to enforce the CAC award, knowing that it will not result in compulsion for the employer to obey the order of the CAC. My amendment provides enforcement by way of a High Court injunction. That is an established procedure often used against trade unions for breach of their obligations in relation to industrial action. Some equivalence is surely justified here.

[Baroness Lawlor (Con)]

I support Amendments 212 and 213 in this group tabled by my noble friend Lord Jackson. I agree that a 24-hour notice period is necessary, particularly for small businesses, because access to the workplace by third parties can be disruptive. Visitors calling unannounced can disrupt a carefully organised schedule between an employer and his or her employees. The 24-hour notice period would allow employers to prepare for a visit and to reschedule certain tasks. I support exempting smaller businesses from some of these arrangements, because it is very hard to organise smaller businesses with third-party interruptions.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Tuesday 10th June 2025 Lords Chamber

[Baroness Cash (Con)]

I am very grateful to the noble Lord for that assistance. I therefore look forward to the amendment put forward by the Government to exempt those 13, given the law that I am explaining and the attack on the freedom of association that should be maintained in this country.

[Lord Hendy (Lab)]

Will the noble Baroness permit me to intervene? She spoke about Article 11 of the European Convention and freedom of association, and the right to join a trade union and be a member for the protection of one’s interests. This is spelled out in Article 11.1. She mentioned the case of Young, James and Webster v the United Kingdom, which established that there is a negative right not to become a member of a trade union, as well as a positive right to become a member. However, the European Court of Human Rights has never held in any case that a member of an organisation, a political party or a trade union can opt out of a particular payment that that organisation is making.

[Baroness Cash (Con)]

I am grateful to the noble Lord for his intervention, but he is wrong. The European Court has ruled that it is not possible. Article 11 does not permit compelling any citizen of this country, or any member of a trade union, to make a payment by political association. That is simply not correct.

[Lord Hendy (Lab)]

Let me put it more respectfully: I disagree. That is not what the jurisprudence of the European Court of Human Rights on Article 11 demonstrates. There is no right, if you are a member of the Royal Society for the Protection of Birds, to opt out of any contribution or expenditure it makes on any particular objective. There is no such right established under Article 11. You can opt out of being a member of the organisation, but you cannot opt out of what it has decided to spend its money on. All you can do is exercise your rights under its constitution to object or decide it should be spent on something else.

[Baroness Cash (Con)]

The noble Lord is, very respectfully, making interventions which do not follow the law. I will quote a couple of other cases because that may assist the debate: Sigurdsson v Iceland, and Sorensen and Rasmussen v Denmark. The noble Lord can join the Royal Society for the Protection of Birds, and whether or not he opts out is not a matter for this debate. We are talking about the freedom to join a trade union, and the asking of those who have signed up to be a member of a trade union to contribute to campaigning funds—political funds. It is that political association—the taking of funding for that political association—which infringes the Article 11 right.

[Lord Hendy (Lab)]

Forgive me, but those two cases do not demonstrate that. I am familiar with this jurisprudence; I suggest that the noble Baroness read the cases again.

[Baroness Cash (Con)]

I understand that in this House people sometimes disagree, and perhaps, respectfully, that is happening here. I can give way as many times as the noble Lord likes, but it is plain from the case law and the jurisprudence, and from how Article 11 is taught at law school, where I have taught it as a guest, that this is how freedom of association applies.

After an opt-out has been introduced, there is no refund mechanism available to cover the period during which the funds will be taken by 13 of the trade unions and passed to the Labour Party. At least we are now agreed that 13 of the unions will be giving the funds to the Labour Party. In those circumstances, we are compelling people to support it. It is because the Human Rights Act and the European Court jurisprudence intervened—that was part of the conversations when the opt-in was considered. Looking at the contributions, financial or otherwise, made during that period, I am very grateful to the noble Lord, Lord Prentis, for drawing our attention to the decrease in political funding that has ensued because of the change. We know that that is why this change back needs to be made, but that does not make it right.

Employment Rights Bill

Lord Hendy Excerpts

Committee stage
Tuesday 10th June 2025 Lords Chamber

Moved by

[Lord Hendy]

238: After Clause 64, insert the following new Clause—
“Right to take industrial action(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended as follows.(2) After section 219, insert—“219A Right to strikeEvery worker shall have the right to take industrial action, whether or not in breach of any contract, subject to the provisions of this Part.””Member’s explanatory statement
This amendment would establish a clear positive right to strike (and take action short of a strike).

[Lord Hendy (Lab)]

My Lords, it is a bit daunting, at 9.50 pm, to speak to a series of amendments relating to the right to strike. I thank my noble friend the Minister for taking time out of her very busy schedule to discuss these amendments, and amendments on collective bargaining, with me last week. The meeting was very amicable and very constructive, but Members opposite will no doubt be pleased to learn that she yielded not an inch on these amendments. None the less, I think it worth while to advance them.

Amendment 238 is intended to confer a positive right to strike. Striking and other forms of industrial action constituted a criminal offence until 1875 and were subject to civil liability until the Trade Disputes Act 1906. Since then, the law has undergone various evolutions, until the Conservative Governments passed a series of Acts in the 1980s, consolidated in the Trade Union and Labour Relations (Consolidation) Act 1992, which severely restricted industrial action.

Subject to those restrictions, the Court of Appeal in Metrobus v Unite in 2009 held:

“In this country, the right to strike has never been much more than a slogan or a legal metaphor. Such a right has not been bestowed by statute. What has happened is that, since the Trade Disputes Act 1906, legislation has provided limited immunities from liability in tort. At times the immunities have been widened, at other times they have been narrowed. Outside the scope of the immunities, the rigour of the common law applies in the form of breach of contract on the part of the strikers and the economic torts as regards the organisers and their union”.


As the Court of Appeal put it in RMT v Serco Ltd in 2011:

“The legislation therefore secures a freedom rather than conferring a right as such”.


Both judgments noted that the European convention and other international laws ratified by the UK protected the right to strike, but that was held to be insufficient to establish such a right in UK law. So there is no positive right to strike in the UK, merely a freedom to take industrial action, protection from what would otherwise be unlawful. My amendment proposes that we should have such a right. In making that case, I do not suggest that such a right should be free of limitations. If this amendment were adopted, the current statutory restrictions on its exercise would remain.

The international treaty obligations by which the UK has elected to be bound support the case for my amendment. The UK ratified ILO Convention 87 on freedom of association and protection of the right to organise on 27 June 1949. The ILO, of course, is a tripartite body representing Governments, employers and workers of virtually every country in the world. Though Convention 87 does not expressly mention the right to strike, since the 1950s the relevant supervisory committees of the ILO have held repeatedly that it does so implicitly. For decades, member states have acknowledged that jurisprudence. For example, the UK Government have argued in the ILO:

“The right to strike, which, although not expressly laid down in Convention No. 87, was implied by the provision there for the right freely to organise activities”.


Independently of Convention 87, the ILO recognises the right to strike. A joint statement issued by the employers’ group, workers’ group and governmental groups in 2015 affirmed that:

“The right to take industrial action by workers and employers in support of their legitimate industrial interests is recognised by the constituents of the International Labour Organisation”.


I turn to other international treaties ratified by the United Kingdom. The UN Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights protect freedom of association and the right to be a union member. In 2017, the UN special rapporteur on freedom of association stated:

“The right to strike is also an intrinsic corollary of the fundamental right of freedom of association. It is crucial for millions of women and men around the world to assert collectively their rights in the workplace, including the right to just and favourable conditions of work, and to work in dignity and without fear of intimidation and persecution”.


Article 8.1(d) of the International Covenant on Economic, Social and Cultural Rights explicitly requires

“States Parties … to ensure … The right to strike”.


In 2019, the supervisory bodies responsible for the two covenants I have just mentioned—respectively the Committee on Economic, Social and Cultural Rights and the Human Rights Committee—issued a joint statement on the basic principles of freedom of association common to both covenants, stating,

“the right to strike is the corollary to the effective exercise of the freedom to form and join trade unions”.

In 1997, the Committee on Economic, Social and Cultural Rights addressed in relation to the United Kingdom the very issue raised by this amendment, holding that:

“The Committee considers that failure to incorporate the right to strike into domestic law constitutes a breach of article 8 of the Covenant. The Committee considers that the common law approach recognising only the freedom to strike, and the concept that strike action constitutes a fundamental breach of contract justifying dismissal, is not consistent with protection of the right to strike”.


This led the committee to recommend that the right to strike be established in UK legislation because

“the current notion of freedom to strike, which simply recognises the illegality of being submitted to an involuntary servitude, is insufficient to satisfy the requirements of article 8 of the Covenant”.

In 2002, the committee reiterated its concern that

“failure to incorporate the right to strike in domestic law constitutes a breach of article 8 of the Covenant”,

and repeated its recommendation that the right to strike be incorporated in UK legislation. It cannot be acceptable that the UK will not comply with these obligations.

At European level, the European Court of Human Rights has recognised in a succession of cases that the right to strike is implicit in the right to form and join trade unions, protected by Article 11.1 of the convention. The other instrument of the Council of Europe, the European Social Charter 1961, is more specific and provides in Article 6.4 that the contracting parties recognise

“the right of workers and employers to collective action in cases of conflicts, including the right to strike”.

Not only is the right to strike incidental to freedom of association but it is a necessary corollary of the right to bargain collectively. Without power to withdraw their labour collectively, workers have no leverage against the much greater power of employers to set the wages, hours, and terms and conditions under which they labour.

The point was elegantly stated by the Supreme Court of Canada in the Saskatchewan Federation of Labour case in 2015:

“The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations … The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction”.


Finally, in this survey, it is to be noted that the EU-UK Trade and Cooperation Agreement 2022 provides in Article 399 that:

“Each Party commits to implementing all the ILO Conventions that the United Kingdom and the Member States have respectively ratified and the different provisions of the European Social Charter that, as members of the Council of Europe, the Member States and the United Kingdom have respectively accepted”.

--- Later in debate ---

[Lord Hendy (Lab)]

My Lords, I am very grateful to the noble Baroness, Lady Jones of Moulsecoomb, for her support and her economic analysis of the consequences of the absence of the effective right to strike. I am grateful to the noble Baroness, Lady Fox of Buckley. I am not sure I quite understood her question, but I am not trying to ring-fence an artificial, theoretical right. This amendment has purpose. I recognise the realities of the political situation in which we are arguing, but this right, were it to come about, would have practical, real consequences and continue what she described as the fight in real life.

The purpose of these international laws, of course, is to lay down minimum fundamental standards for the entire globe. Although some of them are quite ancient, dating to just after the Second World War, and while I accept that capitalism and the world of work have evolved, the fundamental nature of the entitlement to freedom of association, the right to bargain collectively and the right to strike remains, and it is very important that we keep an eye on these international standards and the modern interpretation of them by the bodies which are charged constitutionally to interpret them.

I am grateful to the noble Lord, Lord Goddard, for what I discerned was his support, in a way, at least for the principle. This is my fault entirely, but I was moving Amendment 238 only. I am afraid that he has the further ordeal of listening to me again for the range of further right to strike amendments, including that in relation to prison officers.

I am grateful to the noble Lord, Lord Sharpe, for his thorough response to my arguments. He can use the phrase “constitutional benediction”, but it is better coming from the Chief Justice of the Supreme Court of Canada. I will not take up time dealing with all his arguments; the differences between us are self-evident. I just point out that a positive right to strike exists in virtually every country in Europe, and they do not have a difficulty with issues of breach of contract. Of course, the restrictions on the exercise of the right to strike differ from one country to another, but the positive right exists almost everywhere.

Finally, I thank my noble friend the Minister for her very full response. She says that a positive right to strike would cut across our constitutional arrangements. I just remind her that Section 220 of the 1992 Act provides a positive right to picket; if we can have a positive right to picket, I do not see why we cannot have a positive right to strike. For the avoidance of doubt, I was not suggesting for a moment an absolute and unqualified right to strike. Everywhere in the world that there is a right to strike, it is always subject to limitations, which differ from country to country. The question that these international bodies wrestle with day in, day out is whether the particular limitation is in conformity with whatever the international treaty is.

My noble friend asserts that we are in compliance with international law on this. We have to agree to disagree on that point. I do not believe that to be the case. Of course, I agree with her that this Bill is a great improvement on the law as it is at the moment, but she knows that my view is that it is not quite enough. With that, I beg leave to withdraw the amendment.

Amendment 238 withdrawn.

--- Later in debate ---

Moved by

[Lord Hendy]

239: After Clause 64, insert the following new Clause—
“Right to take industrial action (No. 2)(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended as follows.(2) Omit section 223 (action taken because of dismissal for taking unofficial action).”Member’s explanatory statement
These amendments would remove section 223 of the 1992 Act which renders industrial action unlawful if one of the reasons for the industrial action is that the employer has dismissed one or more workers for taking unofficial industrial action.

[Lord Hendy (Lab)]

My Lords, it is now 10.22 pm, so I apologise for assaulting your Lordships’ ears with a series of amendments which also deal with the right to strike. Since time is precious, I have decided to focus on one amendment in particular and let the rest speak for themselves. I had hoped that my noble friend Lord Woodley would speak to his amendment on prison officers, but he is unavoidably not in his place. I will deal with that amendment when I get to it.

I will focus on Amendment 240, which introduces six specific measures aimed at the restoration of statutory protection for secondary action. Again, I do not entertain a great deal of hope for this amendment—I am a realist—but I express my gratitude for the support of the noble Baroness, Lady Jones of Moulsecoomb, who has added her name to it; for a briefing from the British Medical Association; and for the support of unions, including ASLEF, the BMA, the Bakers, Food and Allied Workers Union, the Fire Brigades Union, the RMT and the University and College Union.

Solidarity action is an inherent aspect of freedom of association and the right of workers to act for and on behalf of fellow workers, particularly fellow trade unionists. From 1906 to 1982, there was no legal distinction between solidarity action and other industrial action. The Conservative Government then introduced restrictions on certain kinds of secondary action, and in 1990 all statutory protection was withdrawn. The Labour Party strongly objected. In the parliamentary debates on the 1990 Bill, Tony Blair, then shadow Employment Minister, said in the other place:

“The abolition of sympathy action is unreasonable, unjustified and way out of line with anything that happens anywhere else”.


In relation to the proposal that all forms of sympathy and secondary action were to be forbidden, he said:

“That proposition is so manifestly unfair and unreasonable … that it is fatal to any pretence of even-handedness in the Bill”.


Compliance with international law is a duty incumbent on the state. Lord Bingham’s eighth principle of the rule of law is the obligation of the state and Ministers to comply with their international treaty obligations. In this House, last November, the noble and learned Lord the Attorney-General said of compliance with international law that:

“We should all be immensely proud of it, and this Government will seek at every turn to comply with our obligations”.—[Official Report, 26/11/24; col. 680.]


He developed the theme in a lecture to the Royal United Service Institute on 29 May this year in which he rejected “cherry picking” among international obligations. He continued,

“The argument … that the UK can breach its international obligations when it is in the national interest to do so, is a radical departure from the UK’s constitutional tradition, which has long been that ministers are under a duty to comply with international law … states can leave the treaties they have signed and agreed on. But the integrity and force of the system requires that once a party, to an agreement, they abide by its rules — they don’t pick and mix”.


It will be recalled that the Labour Party in 2021 adopted a Green Paper, Labour’s New Deal for Working People. It was integrated into Labour’s Plan to Make Work Pay: Delivering a New Deal for Working People. It was explicitly referred to in the election manifesto and in the King’s Speech. The paper said:

“The laws regulating industrial action should ensure that UK law complies in every respect with the international obligations ratified by the UK, including those of the International Labour Organization and the European Social Charter, as reiterated in the Trade and Cooperation Agreement with the European Union”.


The UK has ratified ILO Convention 87, which protects the right to strike. Since 1989, the ILO committee of expert jurists has reviewed the UK’s legislative restrictions on secondary action and held them in violation of ILO Convention 87. The committee held that secondary action should be permitted in three situations. First, where it relates directly to the social and economic interests of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves. Secondly, in any event, a general prohibition of sympathy strikes could lead to abuse, and workers should be able to take such action, provided the initial strike they are supporting is itself lawful. And thirdly, furthermore, the restriction to disputes only between workers and their own employer

“could make it impossible for unions to take effective action in situations where the ‘real’ employer with whom they were in dispute was able to take refuge behind one or more subsidiary companies who were technically the ‘employer’ of the workers concerned, but who lacked the capacity to take decisions which are capable of satisfactorily resolving the dispute”.

That condemnation in 1989 has been repeated many times in the Committee of Experts’ observations on the United Kingdom, including in 1995, 1999, 2001, 2003, 2007, 2009, 2011 and 2013.

The other ILO committee, the tripartite Committee on Freedom of Association, has also condemned the UK in this regard, holding that:

“a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association, the Committee once again requests the Government to take the necessary measures to ensure that sympathy strikes, as well as social and economic protest action, are protected under the law”.

In November 2023, that committee reviewed the P&O Ferries scandal, and among other things, held that:

“At the outset, the Committee recalls that a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful … The Committee recalls that it had previously requested the UK Government to take the necessary measures to ensure that sympathy strikes were protected under the law … The Committee requests the Government to engage with the social partners to overcome challenges regarding the legislative prohibition on sympathy strikes, in conformity with freedom of association”.


The request was ignored.

--- Later in debate ---

The Prison Service and the POA have developed a strong working relationship in recent years, and it is the Government’s hope that this position continues going forward. I can tell my noble friend Lady O’Grady that we continue to work with both sides, and we hope to find a more substantial way forward on these issues. With this in mind, I ask my noble friend Lord Hendy to withdraw his amendment.

[Lord Hendy (Lab)]

My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, for her support, her attention to Amendments 239 and 241, and her economic analysis of inequality in the role of trade unions. I thank my noble friend Lady O’Grady for developing that by explaining that the purpose of these amendments is to restore the balance of power somewhat.

I also thank her for dealing with Amendment 253 on prison officers. I feel somewhat guilty that I did not give due time to that subject in my speech. However, I note the additional point that prison officers in Scotland have the right to strike. It seems inexplicable to me that those in England, Wales and Northern Ireland are deprived of it while those in Scotland enjoy it.

I thank the noble Baroness, Lady Coffey, for her contribution. She did not deal with the requirements of international law; instead, she put forward a case that we have heard before, which in essence is that of special pleading that the circumstances of the United Kingdom justify non-compliance with international law. I do not think that that argument is capable of success.

The noble Lord, Lord Jackson, rather misunderstands the position of international law and the theory of dualist and monist regimes. The United Kingdom is a dualist regime. That means that the obligation of international law falls not on the citizens, corporations, trade unions or other bodies in the United Kingdom but on the state itself. The obligation to comply with international law is that of the state, not of the citizens within it.

The noble Lord mentioned the European Convention. That is somewhat different, because Parliament has made most of the European Convention part of UK law itself. That is a different thing altogether. I am not arguing that the provisions in international law that I have explained apply directly in the United Kingdom or in UK courts or tribunals. The obligations are on the state to conform to those obligations which it has ratified.

The noble Lord, Lord Hunt, regards these measures as a dangerous and retrograde step and regards the current regime over the last 40 years or so as being very successful. On the contrary, I am with the noble Baroness, Lady Jones of Moulsecoomb, in regarding the legislation of 1980s as having led to powerlessness, poverty, inequality, insecurity of work and insecurity of earnings. I disagree with his analysis, in which he describes the consequences of some mythical fantasy world of his own imagination. I say just this about the 1970s, as we do not have time to go into it: for all its faults, it was the most equal decade in British history for wealth and income. The consequence of the 1980s legislation has been to reduce collective bargaining coverage from over 80% to something like a quarter today, which is the essential cause of inequality and poverty.

Finally, I thank my noble friend the Minister for her attentive and detailed response. Again, we must agree to differ in our conclusions, but I add that we cannot go on being damned year after year by these international supervisory bodies. There has to be some way of resolving Britain’s non-compliance. With that, I beg leave to withdraw the amendment.

Amendment 239 withdrawn.