Employment Rights Bill

Lord Murray of Blidworth Excerpts

Report stage
Wednesday 23rd July 2025 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, I will speak to the amendment in the name of the noble Lord, Lord Carter of Haslemere. He has spoken with great eloquence and killer arguments. I agree with him, so none of us needs to speak for very long.

As he has said, this clause was added late in the day in the other place and there is one aspect which particularly appals me. The clause provides that the Secretary of State, or rather, in practice, their Civil Service agents in the new enforcement body, or any other enforcement officer as in Clause 113(7)(b), will be able to take a case to an employment tribunal where an employee is unwilling to pursue their own complaint—that is, without consent. Consent is such an important principle. Subsection (6) makes it clear that the Secretary of State or enforcement officer

“is not liable to any worker for anything done (or omitted to be done)”,

such as an error or reputational or personal damage. The clause also risks putting further pressure on the hard-pressed tribunal system.

The Government’s recent implementation plan seeks expert help in getting the detail of the provisions right. I have worked for small companies, I have worked for a company with 500,000 people, I have worked with USDAW, I have been a member of two Civil Service unions and I have been head of HR in a government department. I believe that this lack of consent will cause untold trouble. The clause must be dropped, and I hope colleagues across the House will vote for the amendment of the noble Lord, Lord Carter.

[Lord Murray of Blidworth (Con)]

My Lords, first, I declare an interest as a barrister who occasionally practices in employment law. Secondly, in Committee on 18 June, Hansard recalls that I described the Bill as

“a complete Horlicks … truly bizarre”

and

“absolutely beyond belief”.—[Official Report, 18/6/25; col. 2048.]

I am amazed at my moderation. Nothing I have heard since addresses my concerns. As ably outlined by the noble Lord, Lord Carter of Haslemere, whose amendment I entirely agree with, this clause allows the Secretary of State to bring a complaint to an employment tribunal without the consent of the complainant. Have these people ever been to an employment tribunal? This is absurd.

Is it proposed, in the event that the claimant has the temerity to disagree with the Secretary of State’s assessment that they have a valid claim, to witness summons the claimant, on pain of arrest, if they do not come and give evidence in support of their claim? If, when there, they have the temerity to give evidence against the claim brought by the Secretary of State on their unwilling behalf, will the Secretary of State apply to the judge to treat their witness as hostile, thus permitting the former to cross-examine the latter on the basis that they really were badly treated by their employer? This is palpable nonsense. This clause cannot stand part of the Bill.

I also draw the House’s attention to the fact that, as raised by the noble Lord, Lord Carter of Haslemere, the wording of the clause is an exercise in discretion and is therefore subject to judicial review. There can therefore be a judicial review of both the decision to bring proceedings on the part of the unwilling claimant and of the decision not to bring proceedings. This is going to be marvellous for those of us who are both at the employment Bar and the public law Bar. There will be endless litigation, all at public expense on every side. This is absurd. I invite the House to remove this clause from the Bill as swiftly as possible.

[Lord Pannick (CB)]

My Lords, I cannot match the peculiar tones of the noble Lord, Lord Murray, but I do agree with the thrust of his remarks. Noble Lords often oppose clauses in government Bills; sometimes noble Lords are alarmed by such clauses, but, very occasionally, it is appropriate to say that a clause in a government Bill is simply bonkers—a technical term, but appropriate in this context. That is the appropriate term in respect of a proposal that the Secretary of State should be given power to

“bring proceedings … in an employment tribunal”,

in place of the worker who has the employment right, where

“it appears to the Secretary of State that the worker is not going to bring proceedings”.

This is a quite astonishing provision, for all the reasons given by the noble Lord, Lord Carter, the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Murray, in particular because the Bill does not require the Secretary of State even to consult the worker whose rights they are going to pursue, far less to obtain the worker’s consent.

Of course, the worker may have good reason not to want to bring proceedings. Not everyone wishes to spend more time with their lawyers. Not everyone wishes to have the finer details of their conduct picked over in public by lawyers for the employer and to be the subject of a public judgment. I declare my interest as a practising barrister, occasionally in employment law cases. I spend much of my time advising clients in all areas of the law that litigation is not necessarily the answer to their problem. The idea that the Secretary of State should decide whether to bring proceedings, and not the worker themselves, could appeal only to those who believe in a state that is ever expanding to take more and more responsibility for areas of life.

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[Lord Murray of Blidworth (Con)]

Perhaps the noble Lord could explain how it is envisaged that the Secretary of State will know that such a worker has a claim and should win.

[Lord Marks of Henley-on-Thames (LD)]

I do not understand why the Secretary of State should not have that information as a matter of public record, or why he should not have become aware of it. Plainly, if the Secretary of State and his department do not have the faintest idea about the case, they are unlikely to invoke Clause 113 and bring proceedings on that basis. However, given the knowledge, it is for the Secretary of State to make a decision. In very many cases, I suppose that the Secretary of State will make a decision against intervening. But another possibility is that a worker might not be proud of their own conduct and might not want it publicly ventilated. These were all reasons that the noble Lord, Lord Pannick, effectively covered in considering why litigation might not be an attractive option for the worker concerned. The Secretary of State has to make, or would have to make, a decision about whether the private right of the worker not to sue is outweighed by the public interest in having a point determined.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

How does the noble Lord envisage the Secretary of State knowing which cases to bring?

[Lord Goddard of Stockport (LD)]

I said at the beginning that I am not a legal person. But there must be something that will happen: a whistleblower or somebody will inform somebody of someone’s condition that they find intolerable, it ends up with someone and somebody has to deal with it. If you go to see the person and they do not want to get involved, are frightened, are unsure or do not know their rights, who scoops that person up and just asks the question? Maybe it is not worth pursuing, but what is wrong with just asking the question?

I ask the Minister to confirm this flexibility that we need to understand the powers. Will they be used proportionately and transparently? We need to hear that. The Government need to tell us how this legislation will work practically. If they can explain, and perhaps not allay all the House’s fears but begin to give some clarity to the thinking behind it, because this is something that has been thought out quite seriously, the House should listen to that.