Employment Rights Bill

Lord Sharpe of Epsom Excerpts

Committee stage
Tuesday 10th June 2025 Lords Chamber

Moved by

[Lord Sharpe of Epsom]

213AA: Clause 56, page 78, line 15 at end insert—
“(2A) Where an access agreement relates to a hospital (within the meaning of section 275 of the National Health Service Act 2006), physical entry may be refused where—(a) patient safety, infection control, or clinical operations would be adversely affected,(b) the access purpose can reasonably be achieved by alternative means of communication, or(c) access would unreasonably disrupt urgent or time- sensitive medical activity.(2B) In determining whether access is reasonable in the context of a hospital, the Central Arbitration Committee must give significant weight to the factors set out in subsection (2A).”Member's explanatory statement
This amendment makes special provision for hospital workplaces, allowing physical access to be refused where it would impact patient safety, infection control, or clinical operations, or where access purposes can be met by alternative means. It requires the Central Arbitration Committee to give significant weight to these factors when considering access in hospital settings.

[Lord Sharpe of Epsom (Con)]

My Lords, this amendment would introduce necessary and proportionate safeguards to ensure that patient safety, clinical operations and infection control were not compromised by well-intentioned but potentially disruptive physical access to hospital environments by trade union representatives. Hospitals are not ordinary workplaces. They are places where critical decisions are made every minute, where vulnerable patients receive life-saving care and where medical professionals must operate in conditions that are tightly controlled in terms of both hygiene and procedure. Permitting physical access to union representatives who are not part of the clinical team and not governed by the same professional or ethical codes introduces risks that simply cannot be ignored.

These are not theoretical concerns. Infection control protocols exist precisely because hospitals deal daily with immunocompromised patients, open surgical wounds and the spread of dangerous pathogens. Entry by any individual not trained in and accountable to those protocols could result in the transmission of infections, the contamination of sterile areas or the unintended exposure of patients to harm. Moreover, hospital environments are highly sensitive to disruption. In intensive care units, emergency departments, operating theatres and maternity wards, even small delays or distractions can have life-or-death consequences. The presence of non-essential personnel in those spaces risks delaying clinical teams, congesting movement corridors, or interfering with time-critical procedures.

Physical access is not just a logistical matter; it can be a direct threat to a hospital’s ability to function safely and effectively. The amendment does not seek to deny trade unions the ability to communicate with members or fulfil their lawful functions. On the contrary, it would explicitly allow access to be withheld only where the access purpose could reasonably be achieved by alternative means; and in the 21st century, such alternatives, as we heard last week, are abundant. Virtual meetings, secure digital communications, designated liaison officers or scheduled engagement in non-clinical areas would all be viable channels for meaningful trade union engagement.

Hospitals are already under enormous pressure, so it is neither safe nor fair to expect them to open their most sensitive environments when those same objectives can be achieved by safer, more appropriate methods. Hospitals also bear legal and regulatory duties that cannot be suspended. Clinical professionals are legally obliged to safeguard patients and maintain secure environments. To require hospitals to grant physical access to non-clinical actors where such access could conflict with those duties would place hospital management in a difficult, nay impossible, position, risking litigation, regulatory sanction and, above all, the trust of the public.

The amendment further recognises the importance of proportionality. It does not seek to impose an outright prohibition; it would simply require the Central Arbitration Committee, when deciding on access disputes, to give significant weight to those clinical and operational factors. That is the right balance, respecting the legitimate role of trade unions while upholding the sanctity of hospital care. To oppose this amendment would be to ignore the distinct and high-stakes nature of hospital environments. No one disputes the value of union representation, but the right to organise must never override the duty to protect.

Hospitals are not platforms for industrial theatre; they are sanctuaries of healing staffed by professionals who need order, safety and focus to save lives. We have a duty to shield them from any policy that risks disrupting that mission. I urge the Committee to support the amendment and uphold the principle that access, however important, must never come at the expense of patient welfare. I beg to move.

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

I thank the noble Lord, Lord Sharpe of Epsom, for his amendment and I hope, perhaps, that the lack of contributions means that we will make some good progress in Committee today.

[Lord Sharpe of Epsom (Con)]

We have been making progress.

[Lord Katz (Lab)]

On the noise from a sedentary position, I mean in numerical terms, if not in substantive debate.

As the noble Lord, Lord Sharpe of Epsom, just outlined, Amendment 213AA seeks to makes specific provisions for access into hospital workplaces by specifying circumstances in which access may be reasonably refused. It also requires the CAC to consider and give more weight to these factors when deciding on access.

As we discussed last week, the Secretary of State will be able, through regulations, to set the circumstances that the CAC must take into account when making decisions on access, including potentially complex access arrangements in workplaces such as hospitals and other healthcare settings. These areas of detail will be subject to public consultation before the regulations are made and we will invite all interested parties to provide their views on these matters when we launch our consultation.

It is a complex policy area that will involve detailed practical considerations. It is not as though, at the moment, we do not have strong and healthy engagement with a number of different trade unions in all manner of healthcare settings, including hospitals. We have trade union access, involvement and activity in complex workplaces, including hospitals. Special consideration is given to the importance of keeping them sterile and safe, particularly for those who have immunocompromised conditions and, indeed, anybody who is a patient in that setting. This can and has been achieved, and it is perfectly reasonable for the CAC, following consultation, to make regulations that set this. As I said, this is not a policy area that is not already well rehearsed and understood.

The noble Lord, Lord Sharpe, is right that hospitals are particularly special settings but they are also workplaces. The NHS employs large numbers of people and has a very mature industrial relations framework within it. It is certainly not implausible that, in consultation with all interested parties, the CAC could come to a perfectly reasonable compromise on access.

The Government also feel that it is not appropriate to make specific provisions for just this one kind of workplace—hospitals—prior to consultation. We are talking about hospital workplaces as opposed to, say, general practitioner or dental surgeries or other areas where you have regard to clinical safety and the sorts of considerations that the noble Lord talked about. Given that, I ask him to withdraw his amendment.

[Lord Sharpe of Epsom (Con)]

I am grateful to the noble Lord for his answer, but a little disappointed. His words largely give away why the Government should accept this amendment. I believe he just used the phrase “reasonable compromise” with regard to the Central Arbitration Committee, whereas the amendment just says

“must give significant weight to the factors set out in subsection (2A)”.

The practical impact of both those phrases is much the same.

So I am disappointed that the Government have chosen to reject this amendment, which is modest, carefully constructed and aimed at protecting one of our most vital public services. We were not asking for a sweeping exclusion, nor undermining the rights of trade unions or seeking—to use the noble Lord’s phraseology—to restrict involvement. We proposed a targeted safeguard that simply recognises the unique, high-risk nature of hospital environments. I will not press the point now, but we reserve the right to return to this in due course. For now, I beg leave to withdraw.

Amendment 213AA withdrawn.

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Moved by

[Lord Sharpe of Epsom]

215ZA: After Clause 56, insert the following new Clause—
“Section 56: consultation requirement(1) Before section 56 comes into force, the Secretary of State must consult such persons as they consider appropriate, including—(a) representatives of trade unions, and(b) representatives of employers,on the use of digital communication methods as part of access agreements under section 56.(2) The Secretary of State must publish the outcome of that consultation.(3) Section 56 may not come into force until the outcome of the consultation under subsection (2) has been published.”Member's explanatory statement
This amendment requires the Secretary of State to consult on the role of digital communication in trade union access agreements and to publish the outcome before the relevant provisions come into force.

[Lord Sharpe of Epsom (Con)]

My Lords, Amendment 215ZA is in my name and seeks to insert a new clause following Clause 56. This amendment would require the Secretary of State to consult relevant stakeholders, including representatives of both employers and trade unions, on the use of digital communication methods as part of trade union access agreements under Clause 56. Furthermore, it would require that the outcome of that consultation be published and that the provisions of Clause 56 may not come into force until that has happened.

Let me say at the outset that this is a moderate, practical and entirely necessary amendment. It does not challenge the principle of union access. It does not frustrate the core intent of the legislation. What it does is inject a degree of transparency, rigour and, crucially, consent into a provision that, as it stands, risks doing significant unintended harm to employers and employees alike.

I refer to the remarks made last week by the noble Lord, Lord Katz, during Committee. I thought they were illuminating and, frankly, somewhat concerning. The noble Lord assured us that the Government intend to consult further on the digital provisions. But here is the critical point: the legislation as currently drafted allows Clause 56 to come into force before that consultation has occurred and before any regulations are laid. In effect, this Committee is being asked to pass a framework of legal obligations that have real-word consequences for access to workplaces and digital systems without knowing the rules that will underpin them. This is legislation in reverse, because it enables powers first and critical definitions and safeguards later.

Let us take the words of the noble Lord, Lord Katz, directly. He said that

“the precise details of how this will work in practice will be set out in secondary legislation following further consultation”.

But secondary legislation, as we have discussed many times over the course of this Bill and others that this Government are putting through, is not subject to the same scrutiny as primary legislation. It is not amendable. It can be laid quietly and approved via negative procedures. That is why we must build the consultation obligation directly into the primary legislation. Without it, we risk leaving employers, particularly small and medium-sized employers, exposed to obligations they neither understand nor have had the opportunity to influence.

The noble Lord acknowledged that digital access was not included in the original drafting of the Bill and so was not debated during the Commons Committee stage. It was inserted at a late stage in the legislative process. When pressed on this by my noble friend Lady Coffey last week, the noble Lord could offer no justification for the timing or the rationale behind that late change. Instead, we were told that

“in 2025, the idea that access to a workforce would not include digital channels is, frankly, fanciful”.—[Official Report, 5/6/25; cols. 984 and 985.]

Again, those were the noble Lord’s words.

That may well be the case, but policy made on assumptions and generalities is not good policy. What exactly will “digital access” mean in practice? Will unions be allowed to email employees directly? Will they be granted access to internal mailing lists? What about secure internal platforms or workplace intranets? Will employers be compelled to share employee contact details or act as intermediaries in the distribution of union materials? What safeguards will exist to protect commercially sensitive information, particularly in small firms that operate on a single device or a shared system?

My noble friend Lord Leigh of Hurley also raised a very pertinent point last week. He said:

“The Government are asking the House of Lords tonight to pass legislation that will allow a third person the right to access an employee’s computer … without any controls, references or parameters”.—[Official Report, 5/6/25; cols. 984-85.]


That is not mere rhetoric but a credible reading of the Bill in its current form. If that is not the Government’s intent, we need clarity in law, not just reassurance from the Dispatch Box.

The noble Lord, Lord Katz, tried to deflect concerns by pointing to data protection legislation, but as many in this Committee know only too well, data protection laws regulate the use of personal data; they do not in themselves govern the parameters of access rights under trade union law. Nor do they address the central concern here: that employees and unions need agreed, defined rules of engagement for digital contact in the context of access rights. Indeed, the Government’s apparent position is that all this can be worked out later. That is simply not acceptable. When legislation interferes with the operation of businesses, the integrity of secure systems and the balance of power between employers and unions, it is not enough to say, “Trust us to sort it out in regulations”.

Let me also address the claim that consultation will happen eventually. Of course we welcome that promise, but good process means consulting before rules take effect, not after. It means asking those affected what is reasonable before forcing them to comply, and that is all this amendment does. It would require the Secretary of State to consult relevant stakeholders, including trade unions and employers; that the outcome of that consultation be published in the interests of transparency and trust; and that the relevant part of the legislation, Clause 56, cannot come into force until that is done. That would give everyone fair notice. It would ensure meaningful engagement and prevent the scenario we are currently hurtling towards: a system through which access rights could be imposed by the Central Arbitration Committee, including digital access, without any shared understanding of what that entails.

Access must be delivered in a way that is workable, proportionate and appropriate in each workplace context. In many modern workplaces, digital contact is indeed the most effective route, but in some environments, especially among some SMEs, it also represents a point of vulnerability both for the operations and for data security. I beg to move.

[The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)]

My Lords, I thank the noble Lord, Lord Sharpe, for Amendment 215ZA, which seeks to commit the Government to consult with trade unions and representatives of employers on the detail of Clause 56, which covers trade union right of access. In particular, it would require the Government to consult on the use of digital communication as part of access agreements.

I can confirm that the Government have already committed to consulting with both trade unions and employers’ representatives on the framework and conditions of access, including on the details of that digital access. I can confirm that we will not bring forward secondary legislation on this before we have consulted. While I am grateful to the noble Lord for tabling this amendment, and I look forward to the upcoming debates on Schedule 6 and Clause 57, I must ask him to withdraw his amendment.

[Baroness Jones of Whitchurch (Lab)]

I can assure the noble Baroness that all the main business organisations are consulted as a matter of course, and many of our consultations are available more widely. I take on board her question about the black community and I will ensure that, where it has representative organisations, they are included.

[Lord Sharpe of Epsom (Con)]

My Lords, I am very grateful to the Minister for her answer. Just to be clear, as I understand it, that means that this aspect of the Bill will not be commenced until consultation has taken place. As my noble friend has just suggested, this begs the question of exactly who will be consulted and how. I look forward to hearing more from the Minister on that. I do not expect her to be able to answer that now, but it would be very welcome if she could outline the details of this consultation in a letter in due course. However, I am grateful that she has committed to having the consultation before the commencement of this provision. I beg leave to withdraw the amendment.

Amendment 215ZA withdrawn.

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Moved by

[Lord Sharpe of Epsom]

215AZZA: After inserted paragraph 13A(5), insert—
“(5A) Where the CAC is satisfied that changes to the workforce materially affect the composition of the bargaining unit, it may direct the employer to provide updated specified information before the close of any ballot.”Member's explanatory statement
This amendment enables the CAC to request updated workforce information from the employer where there have been material changes, ensuring that the ballot reflects the current composition of the bargaining unit.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Baroness for her explanation of the amendments, particularly the government amendments. However, she argued that this should have been something of the nature of a general debate. The reason why the amendments were degrouped in the other cases is because they all relate to the government amendments, which the Government are trying to pass off as technical when they are anything but. This deserved a discrete debate and that is what it is going to get. I will have to speak at some length, because there is a great deal to cover, for which I apologise in advance.

I will start with Amendment 215AZZA, which is essential to ensure that the union recognition ballot remains fair and truly representative of the bargaining unit at the time of the ballot. The Government’s current position, which locks in workforce data as of the application date and refuses to permit updates, rests on a false premise, and that is that the workplace is static and unchanging; this is simply not the case.

Many industries, from hospitality and retail to logistics and manufacturing, experience significant changes in their workplace composition over time. Employees leave, new workers are hired and entire teams can be restructured in response to market demand or seasonal shifts. By refusing to allow the CAC to request updated workforce information, the Government’s approach risks ballots that are fundamentally out of date—an electoral exercise held not on the actual workforce but on a ghost workforce that no longer exists.

Our amendment would give the CAC the power to direct employers to provide updated workforce information where material changes occur, allowing the ballot to reflect the current reality. This is not a matter of administrative tidiness. It protects workers from having union recognition based on outdated data imposed on them or from being excluded from the democratic process entirely because they joined the company after the arbitrary cut-off.

Furthermore, the CAC has a proven track record of acting promptly and impartially to ensure that ballots are fair and accurate, so the amendment would strengthen rather than weaken its role in protecting workers’ democratic rights. Without this power, the Government’s framework risks disfranchising many workers and undermining the confidence in the entire union recognition process. I have to say that noble Lords opposite frequently cite democratic concerns about current employment law, and if they are serious and not just paying mere lip service to that notion, they should back the amendment and the others to which I am speaking.

Amendment 215AZZB seeks to correct a fundamental injustice that is embedded in the Government’s Amendment 215A. The Government are excluding any worker who joins the bargaining unit after the application day from participating in the recognition ballot. This exclusion is indefensible. It denies newly hired employees any say in a process that will directly impact their working conditions, their representation and potentially their relationship with their employer. The principle at stake is simple: democratic fairness requires that those affected by a decision have the opportunity to participate in making that decision. To exclude workers based solely on an arbitrary application date denies them this right. It is not, as the Minister asserted just now, fair; it risks imposing union recognition —or, conversely, denying it—on employees who are not allowed to express their views.

In sectors where employee turnover is high or where the workforce expands rapidly due to seasonal demand, the Government’s approach risks disfranchising a significant portion of the workforce. These workers are often the most vulnerable and most in need of representation. Our amendment would ensure that all workers employed within the bargaining unit up to the close of the ballot would be eligible to vote. This aligns with the recognition process, with democratic principles and with the reality of modern employment patterns. To deny these workers a voice is to undermine the legitimacy of the entire process.

Amendment 215AZZC seeks to reinforce the need for fairness by ensuring that newly hired workers are not automatically excluded from the recognition ballot, provided they are employed before the ballot concludes. Again, we believe it is untenable for the Government to argue that workers hired after the application date should have no say in a process that determines their representative status and the terms and conditions that govern their work. In industries that are characterised by rapid hiring, seasonal peaks or unpredictable labour needs, the workforce on the application date may bear little resemblance to the workforce at the time of the ballot. By allowing all workers employed up to the ballot’s close to vote, we uphold principles of inclusivity and fairness, ensuring that this ballot truly reflects the views of those it affects.

Amendment 215AZZCA recognises the realities of sectors characterised by high seasonal or cyclical employment volatility, such as retail, hospitality and logistics. These industries often see dramatic fluctuations in employee numbers, with staff numbers sometimes doubling or halving within a matter of weeks or months. The Government’s proposals fail to take this volatility into account. They impose rigid cut-offs that disfranchise workers who join after the application day, even when their numbers materially affect the bargaining unit’s composition. This is not a marginal issue. In such sectors, the workforce on the application day may represent only a fraction of the employees who will work there over the coming months.

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[Lord Lucas (Con)]

I understand that, but it still requires something in the Bill to allow a minimum number. We can return to that matter on Report.

[Lord Sharpe of Epsom (Con)]

I beg leave to withdraw the amendment.

Amendment 215AZZA (to Amendment 215A) withdrawn.