Employment Rights Bill

Lord Leong Excerpts

Committee stage
Wednesday 21st May 2025 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I join the general congratulations offered to the noble Baroness, Lady Smith of Llanfaes, on her very comprehensive introduction of these amendments; she deployed some incredibly powerful examples.

We are all in agreement that violence and harassment, particularly sexual harassment and gender-based abuse, have absolutely no place in any workplace. Every worker, whether in an office, on a site or working remotely, deserves to feel safe, respected and protected. Tackling those issues must remain a top priority.

The amendment before us seeks to introduce stronger duties on employers to prevent and respond to these harms. Measures such as risk assessments, training and clear reporting systems can be important in building a workplace culture where abuse is not tolerated and victims are supported, so we absolutely understand the intention behind the amendment.

Although we agree that there is a need for action, we do not believe that the Health and Safety Executive is the right body to enforce these new responsibilities. That is not meant as a criticism of the Health and Safety Executive; it is simply a recognition that there are fundamentally different areas of concern that we think require a different kind of regulatory response. That is not the same as saying that we do not support the intentions of the amendment.

We do not support Amendment 100. We need solutions that deliver real protections to address sexual harassment. Finally, I have to say, from a very personal point of view, that I completely agree with my friend, the noble Baroness, Lady Fox, and her reservations about proposed new subsection (3B).

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

My Lords, first, I thank the noble Baroness, Lady Smith of Llanfaes, for her patience and apologise to her that it has taken until our fifth day in Committee for her to introduce her amendments. I thank her again for Amendments 99 and 100.

I assure the noble Baroness and all noble Lords that the Government are fully committed to protecting workers from workplace violence and harassment. This is a top priority for this Government, with our manifesto commitment, as mentioned earlier by the noble Baroness, to halve violence against women and girls in a decade. In response, I am happy to say that we already have a strong and, in the Government’s view, appropriate regulatory framework in place that ensures that workers are protected from such risks.

I refer to the Health and Safety at Work etc. Act. Under the statutory provisions made under the existing Act, employers have a very clear duty to protect their workers from health and safety risks, including workplace violence. Employers are required to assess and take appropriate steps to eliminate or reduce this risk. The Health and Safety at Work etc. Act, along with other related legislation, also mandates employers to take measures to reduce the risk of workplace violence.

As part of this, the Management of Health and Safety at Work Regulations 1999 require employers to assess risks in the workplace, including the potential for violence, and to take suitable action to reduce or eliminate this risk. The Health and Safety Executive—HSE—and local authorities are responsible for enforcing the Health and Safety at Work etc. Act and carry out both proactive and reactive measures to ensure that employers are complying with their duties. This includes ensuring that employers assess risks and implement appropriate measures to protect their workers and anyone else affected by their work from workplace violence. The HSE has also published accessible guidance on its website to help employers comply with their legal obligations. It also works very closely with other regulators to promote co-operation, share intelligence and, where appropriate, co-ordinate joint activities.

In the noble Baroness’s proposed amendments, there is a request for HSE to publish a health and safety framework specifically focused on violence and harassment in the workplace. Employers already have duties under the Management of Health and Safety at Work Regulations to ensure they have sufficient arrangements in place to manage health and safety risks in the workplace, including violence and aggression. Although workplace harassment could be addressed under the Health and Safety at Work etc. Act, the HSE does not intervene where there is a more appropriate regulator or where more directly applicable legislation exists.

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[Lord Russell of Liverpool (CB)]

I am grateful to the Minister for laying out the plethora of different types of Act and instrument that are meant to be woven together into a seamless whole to stop abuse in the workplace happening. He started off by mentioning an Act passed 51 years ago. He then talked about regulations enacted 26 years ago. He then spoke about the harassment Act of 18 years ago and the Equality Act of 16 years ago. With the greatest respect, if the combination of these regulations has been in force for as long as they have been and we are in the situation we now find ourselves in, with the evidence of what is happening in a variety of workplaces, large, medium and small, clearly all is not well.

The idea of bringing forward amendments such as these is not that they are word perfect from the word go. Everybody in the House knows that perfectly well. Committee is to probe; to try to see if we can come to agreement across the Chamber that it ain’t working and we need to do something better. With the best will in the world, standing up and trying to defend the status quo, when the status quo quite clearly is not working as it is meant to do in theory, is not helping anybody. So, I again ask and suggest—and I am sure the noble Baroness will say this when she responds to the Minister—that we accept that it is not working properly and that it would be a no-brainer to try to work together, across this House and with another place, to see if we can use this Act as a way to improve on what clearly is not working at the moment.

[Lord Leong (Lab)]

I thank the noble Lord, Lord Russell of Liverpool, for that, and I hear what he says. But I stress here, with all the current legislation in place, that there must have been cases before us that we can learn lessons from. What we need to do, and do better, is use “black box thinking”, where we can learn from what has happened and hopefully share with other regulators what works and what may not have worked, so that we can address a problem rather than bring in more legislation. We can look at what has been successful and share those successes among other enforcers as well.

I conclude by saying that the Government remain committed to raising awareness of this important issue. I can confirm that the Minister, my noble friend Lady Jones, has already met with Minister Jess Phillips and Alex Davies-Jones, and we continue to work with them to try to see how we can come together on this. I therefore respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Smith of Llanfaes (PC)]

My Lords, I thank everyone who has spoken in this debate. I am grateful to those who have shown support for these amendments and also those who support the outcome these amendments are trying to achieve. I will reflect on what we have discussed in this debate today, ahead of Report.

On the point made by the noble Baroness, Lady Fox, about a “gender-responsive approach”, I can clarify what that entails. The amendment addresses the different situations, roles, needs and interests of women, men, girls and boys in the design and implementation of activities.

As we have hit on during this debate, the status quo is clearly not working. I know that the Minister outlined in his response the preventative measures being put on to employers. But, as I have explained, those preventative measures are not actually preventative, because you have to prove your sexual harassment claim in order for it to be a breach. Even in the language we use about what is currently in place, it is not preventative. I welcome further discussion with the Minister following this, and hopefully we can come to an agreement on how we can bring this forward within the wider approach.

I will withdraw my amendment today, but I retain my right to bring back further amendments on Report. I hope that His Majesty’s Government reflect on this debate and that we can engage further on this matter. I beg leave to withdraw my amendment.

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[Lord Hunt of Wirral (Con)]

My Lords, this has been such a valuable debate, for a number of reasons. We are grateful to the noble Lords, Lord Aberdare and Lord Knight of Weymouth, and the noble Baronesses, Lady Wolf of Dulwich and Lady Garden of Frognal. In many ways, it gives us an opportunity just to see where we are going, and to identify the fact that, for many of us, apprenticeships mean something deep and profound.

I am delighted to see the noble Lord, Lord Monks, in his place. He probably will not remember but, 32 years ago, he came to see me when I had responsibility for this area of policy. Accompanying him was the noble Lord, Lord Jordan, and they said to me, as Secretary of State for Employment, that apprenticeships needed to be brought into the modern age and that there had to be something deeper, wider and more productive for the individual than the idea of standing by a machine for five years and then qualifying. They were talking particularly of young apprentices. I was persuaded, and, slowly but surely, modern apprenticeships have evolved.

I do not think that the noble Lord, Lord Monks, remembers this, but that was followed by a cartoon in the Guardian, which my children still show me—I should not talk like this on my birthday. The cartoon demonstrates me getting into a large four-poster bed with the noble Lord, Lord Monks, who was in the form of a large cart-horse—the cart-horse had the face of John Monks. This gives me an opportunity to apologise to the noble Lord. I suppose that the Guardian was saying that it looked as though the Conservative Government were listening to the TUC. We did, and modern apprenticeships have taken off ever since.

The levy though, as the noble Baroness, Lady Garden of Frognal, reminded us, has shifted the emphasis and the whole intention, which was to encourage younger people to get more involved. In a way, we need to identify that—and I hope that the Minister will recognise that apprenticeships are the lifeblood of the new economy, in particular, provided that they receive that special status. It was very helpful that my noble friend Lady Coffey reminded us about age, and that perhaps 25 is a better age in this regard. My noble friend Lady Stowell of Beeston also put it much more into context, and the noble Baroness, Lady Watkins of Tavistock, gave an additional dimension. It has been a valuable debate.

I remind the Minister that we are talking about specific instances where there has to be an apprenticeship contract containing often wide-ranging provisions but giving security and opportunity. So it is a balanced and measured amendment that acknowledges the critical reality that apprenticeships are not just simply jobs—they are a structured training programme, often the very first experience that a young person has of the workplace. For many of these individuals, particularly those youngsters, an apprenticeship is a gateway not just to employment but to the habits, responsibilities and expectations of adult working life.

We are already in a time, as many of my noble friends pointed out, when young people are struggling to access secure employment. The noble Lord, Lord Londesborough, reminded us about the serious problems affecting NEETs, which have cropped up several times in this debate already—and also the fact that, in other European countries, apprentices have a special legal status. In many ways, that is recognised in this amendment, because it talks about a contract. We can identify that we are talking about a very special situation, and I hope that the Minister sees that.

I will just add that, without legal clarity around probationary periods, particularly in the case of apprenticeships, many employers will be left uncertain—and uncertainty breeds hesitation. It becomes less likely that they will take on the risk of hiring an inexperienced young person, especially under a regime of day one unfair dismissal rights, with no allowance for the formative nature of apprenticeships. I shall be very interested to hear the Minister’s response on that matter, on how the Government seek to balance the protection of apprentices with the practical realities of probationary periods. I support the amendment.

[Lord Leong (Lab)]

My Lords, first, I take this opportunity to wish the noble Lord, Lord Hunt of Wirral, a very happy birthday. It is a fine way to spend a birthday this evening.

I thank all noble Lords who have contributed to this debate, notably the noble Lord, Lord Aberdare, for speaking on behalf of the noble Baroness, Lady Wolf of Dulwich. I thank the noble Baroness for her amendment and for all the work that she has done in primary and secondary education—especially her book, The XX Factor, which should be read widely by every person involved in education policies.

This group relates to apprenticeships; a later group delves deeper into unfair dismissal and probation. The Government recognise the significant value of vocational learning, and on-the-job training will continue to be fundamental to building the skills that the economy needs to grow. We recognise that employers value building knowledge and skills through apprenticeships, and this Government are committed to apprenticeships.

The Government are providing day one protections against unfair dismissal to all employees, including apprentices. Maintaining a qualifying period for apprentices will leave them open to being fired without any recourse to legal challenge on the grounds of unfair dismissal during their apprenticeship. This amendment would not create a probation period, as the noble Lord, Lord Londesborough, said; it would deny young people their day one rights. The Government’s preference is for statutory probation to be a period of nine months; in some instances, when an apprentice completes their apprenticeship, an employer may not have a permanent job for them. Most apprenticeship contracts are around two years in duration; in this case, the apprenticeship contact will expire and the normal tests for unfair dismissal will apply.

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[Lord Goddard of Stockport (LD)]

My Lords, I wish to speak in support of the amendments put forward by my noble friend Lord Fox, who is unfortunately away today, on NATO business I believe. Tomorrow, no doubt, he will pore over today’s Hansard. I hope that the noble Lord, Lord Hunt of Wirral, will be available then. I cannot unsee the picture of him in a four-poster bed with the trade union man climbing aboard, and will have to try to explain down the telephone to my noble friend Lord Fox, “It was quite humorous”. We will see what happens with that tomorrow.

My noble friend Lord Fox’s concerns include his Amendments 116 and 121, which offer much-needed clarity and balance to the protections around contract variations and unfair dismissals. The issue of predatory fire and rehire, as seen in the widely condemned P&O Ferries case highlighted by the noble Lord, Lord de Clifford, is an unacceptable, serious and pressing concern that employment legislation rightly needs to address now. No worker should be threatened with dismissal simply to impose worse terms and conditions on that person.

My noble friend Lord Fox’s proposals to exclude routine non-detrimental contract changes from triggering automatic unfair dismissal protections, as in Amendment 116, and to safeguard reasonable flexibility clauses expressly agreed in contracts, as in Amendment 121, would help ensure that protection against abuse is balanced with the practical realities that employees face. His further clarification in Amendments 117 and 122—that dismissals linked to redundancy with offers of suitable alternative employment and the lawful use of fixed-term contracts should not be unfairly restricted—rightly recognise that not all contract variations are harmful and that employees must be able to operate flexibly and fairly.

The amendments in the name of the noble Lord, Lord Sharpe, would facilitate contractual changes for financial organisations or workforce-related reasons. Although the intention is understandable, it is crucial that the Government provide clear guidance to ensure fair protection for workers, particularly those in smaller businesses. The approach to seasonal and variable-hour workers also requires careful consideration to safeguard their rights. We will return to that in a later group.

These amendments collectively illustrate the careful line that the Government must tread. Although it is crucial to clamp down on unfair and predatory fire-and-rehire tactics, as addressed by my noble friend Lord Fox’s amendments, we must equally recognise the legitimate need for flexibility and contract review in a changing economic landscape. I commend my noble friend’s amendments for their clarity and fairness in this regard, and encourage the Government to consider how best to incorporate these protections. At the same time, I urge the Committee to approach other proposed changes—as in Amendments 115 and 115A, which seek to clarify reasonable adjustments and productivity improvements—with a measured and practical mindset, to support both workers’ rights and sustainable business operations. I look forward to the Minister’s comments.

[Lord Leong (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate. This Government are absolutely clear that the use of unscrupulous fire-and-rehire practices must end. Employers should not be able to impose contract changes through threats of dismissal, except in the most limited and justified circumstances. We recognise that, at times, businesses may need to restructure to survive and protect jobs. The legislation accounts for such cases where there is genuinely no alternative and a business faces immediate financial difficulty. Fire and rehire may be used, but only following a proper good-faith process, grounded in open dialogue and mutual understanding.

Let me begin by addressing Amendments 113ZA, 113B and 118 from the noble Lords, Lord Sharpe and Lord Hunt, Amendment 115 from the noble Lord, Lord de Clifford, and Amendment 116, spoken to by the noble Lord, Lord Goddard, on behalf of the noble Lord, Lord Fox. These amendments aim to exclude certain types of contract variations from the clause, such as those relating to terms other than pay, benefits, hours or location, or to allow changes made for good or operational reasons. When a change in contract is essential and the employee will otherwise become redundant—for example, due to a move in location—or where the changes are necessary to reflect a change in the law, the employer will still be able to explain to the employee when proposing these changes. However, such changes should always be a result of meaningful consultation. Employers and employees must reach mutual agreement, allowing both sides to understand and assess the impact of the proposed changes. Open dialogue is key.

I turn to Amendment 114 from the noble Lord, Lord Sharpe, and Amendment 115. These propose broadening the permitted use of “fire and rehire” to include changes that are reasonably necessary to improve workforce productivity. The Bill is the first phase of delivering our plan to make work pay. We are supporting employers, workers and unions to get Britain moving forward. Alongside this and a new industrial strategy, the Bill will support the Government’s mission to increase productivity and create the right conditions for long-term, sustainable, inclusive and secure economic growth.

The Government do not support these amendments. We believe this practice should be allowed only where an employer faces no reasonable alternative and is under imminent financial threat. The noble Lord, Lord Hunt, mentioned what happens if a company is facing insolvency. I am sure most noble Lords know that insolvency does not come straight away. There is a whole process, and it is during this that consultation should happen between the employer and employee. When it comes to the last resort, when until and unless something happens the company is going to go belly-up, there may be a practice of “fire and rehire”, but before that, there should be consultation along the way.

These amendments would significantly widen the exemption and make it necessary for employers to use “fire and rehire”. That is not our intention. While businesses can still agree changes to boost productivity, such changes must come through proper negotiation, not coercion, as I just mentioned.

I now turn to Amendment 119, also from the noble Lord, Lord Sharpe, which proposes allowing “fire and rehire” if the changes are reasonable and supported by a majority of affected employees. This issue here is subjective. What is reasonable for one employee may be deeply unreasonable for another. Our goal is to protect individual rights. Clause 26 is designed to reduce the use of “fire and rehire” as a means to push through significant changes without individual consent.

I will address Amendments 117 and 122 from the noble Lord, Lord Fox, and Amendment 120 from the noble Lord, Lord Sharpe. They focus on whether dismissals for redundancy or the end of a fixed-term contract should be considered automatically unfair under Clause 26. The Government’s position is that, where a role is no longer viable under current terms, employers should follow due process, including meaningful consultation to seek agreement to vary contracts. If employees do not agree, and if the employer no longer requires the work to be done, redundancy may still be appropriate. In such cases, redundancy procedures must be followed, including consideration of alternative roles. Where the principal reason for a dismissal is redundancy, the dismissal will not be automatically unfair under Clause 26.

Now I turn to Amendment 121 from the noble Lord, Lord Fox, which concerns variation clauses in employment contracts. I wish to reassure the House that existing case law already governs the enforceability of such clauses. This clause applies only where there has been a dismissal, and so would not apply where a lawful variation clause has been lawfully exercised. Courts and tribunals will not uphold variation clauses if they are oppressive and exercised unreasonably. This amendment is therefore unnecessary as a legal protection already exists.

I now turn to Amendments 120A and 120B, which relate to the factors a tribunal should consider when assessing the fairness of a dismissal under the clause exemption. It is appropriate that tribunals should consider where the employer offered the employee something in exchange for agreed-to changes. Fair contract variation should be built on dialogue, not pressure. It is right that the Secretary of State should have the power to specify additional relevant factors for tribunals to consider in future. These regulations would be subject to affirmative resolution procedure, ensuring full parliamentary scrutiny.

Finally, Amendment 113 from the noble Lord, Lucas, seeks to limit the clause to only substantial contract changes. We reject that. Even minor-seeming changes can have major consequences for individual employees. Individuals must be allowed to consider proposed changes without facing dismissal threats. That principle underpins the clause.

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[Lord Hunt of Wirral (Con)]

My Lords, I have a feeling that although the Minister was doing his best, he was reading from a script that had been drafted before this debate took place. I listened to my noble friend Lord Lucas and the noble Lords, Lord de Clifford and Lord Goddard of Stockport. They were just giving ordinary examples that need clarity. We did not get from the Minister a clear exposition of how, in those individual cases instanced by colleagues in the debate, they could prevent the Minister’s overall objective. We all agree with him that we have to try to prevent the sort of situation that arose, which we all condemned, ever happening again. But do not let it be so wide that it will stop just minor organisational changes.

[Lord Leong (Lab)]

I thank the noble Lord for giving way. The principle here is that we have to consult with employees before the final resort. Fire and rehire should be the final resort and remedy. Before we even reach that, the whole process of consultation and sitting down and finding a solution should be an underpinning principle.

[Lord Hunt of Wirral (Con)]

I think we are all in agreement, except that the Bill goes too far. For a minor change of address when a company moves offices to be caught by all this in the way that we have exemplified—I think we need greater clarity. But, of course, the hour is late and I do not want to prolong the debate. In the meantime, I beg leave to withdraw the amendment.