Employment Rights Bill (First sitting)

Nia Griffith Excerpts

Committee stage
Tuesday 26th November 2024 Public Bill Committees

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

I also refer to my declaration of interests. I am a member of the Community union, Unison and GMB.

[The Minister for Equalities (Dame Nia Griffith)]

I also refer to my declaration of interests. I am a member of the USDAW trade union.

[Chris Murray (Edinburgh East and Musselburgh) (Lab)]

I also refer to my declaration of interests. I am a member of the Unison and Community trade unions.

Employment Rights Bill (Second sitting)

Nia Griffith Excerpts

Committee stage
Tuesday 26th November 2024 Public Bill Committees

[The Parliamentary Under-Secretary of State for Business and Trade (Justin Madders)]

It is a pleasure to see you in the Chair, Ms Vaz. I refer to my entry in the Register of Members’ Financial Interests and to my membership of Unite and the GMB.

[The Minister for Equalities (Dame Nia Griffith)]

I refer to my entry in the Register of Members’ Financial Interests and my membership of USDAW, the Union of Shop, Distributive and Allied Workers.

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

I refer to my declaration in the Register of Members’ Financial Interests and my membership of the GMB and USDAW.

Employment Rights Bill (Eighth sitting)

Nia Griffith Excerpts

Committee stage
Thursday 5th December 2024 Public Bill Committees

[Jon Pearce (High Peak) (Lab)]

It is a pleasure to serve under your chairship, Sir Christopher. I refer Members to my declaration in the Register of Members’ Financial Interests, and my membership of GMB.

I will apologise now if I have an out-of-date amendment paper; the one that I have is dated Tuesday 3 December. Very early on in our discussions, we had the strange definition of a small or medium-sized businesses as one employing 500 people or more. I just want to check whether the proposed amendment is indeed accurate, because it refers to

“the test of reasonableness in subsection (2)(b)(ii)”.

I do not think that any such subsection exists—I think it should be (3)(b)(ii)—but I appreciate that that might be my misunderstanding.

[The Minister for Equalities (Dame Nia Griffith)]

I draw the Committee’s attention to my interests, and to my membership of the Union of Shop, Distributive and Allied Workers and the National Education Union.

The hon. Member for Mid Buckinghamshire seeks to amend clause 7 in order to commit the Government to exempting the security services from the requirement to refuse a flexible working request only when it is reasonable to do so against one of the eight reasons set out in legislation. His amendment would also exempt the security services from having to explain to an employee why their request for flexible working could not be met. My hon. Friends the Members for Birmingham Northfield, for Worsley and Eccles and for Gloucester have pointed out many good reasons why that is unnecessary, and I will explain why I think the same.

The grounds for refusing a flexible working request are intentionally broad, so that they capture all the business reasons that may make such a request unfeasible. That applies to the security services as it does to any other employer. I will not read out all eight reasons, but I will give some examples. The work may not be able to be reorganised among other staff, or quality or performance may be negatively affected. There may be a lack of work at a particular proposed time, or the business’s ability to meet the demand of customers—we have mentioned the Home Office—may be negatively affected. There is a huge range of reasons that could be used, and they would surely cover—

[Nick Timothy]

I would be grateful if the Minister could explain what conversations she has had with MI5, MI6 and GCHQ to understand whether, given their unusual, specific, specialist operations, there are any circumstances that might go beyond those already set out.

[Dame Nia Griffith]

If I may continue, the point is that there is significant leeway. Basically, the way the provision is worded takes into account the context of the particular type of business. There are many different types of roles in the security services, as has been pointed out, and different things will apply in different circumstances. There is plenty of opportunity there.

[Nick Timothy]

I think the answer to the question must be no. That may be fair enough, but can the Minister tell us whether she has had any conversations with her opposite numbers in the Home Office, which sponsors MI5, or the Foreign Office, which sponsors GCHQ and MI6?

[Dame Nia Griffith]

What really matters is that flexibility is in-built, and I am sure that colleagues in the Home Office will be able to use it.

The other point that the hon. Member for West Suffolk might like me to address is whether giving a reason could expose something that it would be undesirable to expose—in other words, whether any explanation given would incur a breach of security. In many cases—probably the majority—the reason for refusing a flexible working request will not involve matters of national security. It might be a matter of not being able to reorganise the work among existing staff to facilitate a requested working pattern, or there being insufficient work during the period someone has asked to work. Those reasons will be no different from what other employers are considering. In most cases, it will be possible for an employer to give reasons for their refusal without disclosing any sensitive information.

There will certainly be cases where matters of national security come into play, but there are already protections in place. The grounds for refusal given by the employer have to be made public only at the point at which legal proceedings are started. In the unlikely event that an employee makes a claim in the employment tribunal, the tribunal is able to conduct all or part of the proceedings in private, or to order a person not to disclose any document. I therefore invite the hon. Member for Mid Buckinghamshire to withdraw his amendment.

[Greg Smith]

I am grateful to the Minister for her responses. I highlight that this is a probing amendment designed to test the Government’s thinking. I appreciate the flexibilities that she has outlined, but as my hon. Friend the Member for West Suffolk set out, the security services are a particularly unique element within public service.

I can see a multitude of reasons why some of those flexibilities will not be good enough to ensure that those predominantly charged with our national security can comply with every measure in the Bill. I urge the Minister to have those conversations with relevant Ministers in the Foreign, Commonwealth and Development Office and the Home Office, who are responsible for our security services, to double-check that they are entirely comfortable with the provisions in the Bill, which I dare say has been through the write-around process. Sometimes minutiae and detail can be lost in that process, and it is vital for our national security that the Bill should be properly road-tested to the nth degree.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss the following:

New clause 26—Consultation and assessment on the right to request flexible working—

“(1) The Secretary of State must carry out an assessment of the likely impact of the right to request flexible working provided for in section 7 of this Act.

(2) As part of the assessment, the Secretary of State must carry out a consultation on the proposed right to request flexible working.

(3) The assessment must—

(a) include labour market and broader macroeconomic analysis,

(b) examine the impact of the measures in section 7 on employment, wages and economic output,

(c) consider the likelihood of the costs of flexible working measures being passed on to employees through lower wages, and

(d) examine the likely effect of the right to request flexible working on—

(i) productivity,

(ii) wage growth,

(iii) equality of opportunity,

(iv) job security,

(v) economic activity, and

(vi) employment.

(4) A report setting out the findings of the assessment must be laid before each House of Parliament no sooner than 18 weeks after the consultation has been initiated.”

This new clause requires the Secretary of State to assess the impact of the provisions of Clause 7.

Amendment 132, in clause 118, page 105, line 20, at end insert—

“(3A) But no regulations under subsection (3) may be made to bring into force section 7 of this Act until the findings of the report under section [Consultation and reporting on the right to request flexible working] have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown.”

This amendment is linked to NC26.

[Dame Nia Griffith]

Flexible working is essential to helping people achieve a better work-life balance. It can lead to employees being happier, healthier and more productive. Having the ability to vary the time, hours and place of work is also key to the functioning of the UK’s flexible labour market. Improving access to flexible working is therefore good for employees and good for business. That is why we have committed to making flexible working the default, unless it is not reasonably feasible.

I reassure members of the Committee that my team has fully engaged with members of the Security Service, particularly on amendment 132 and not just the write-around, which is quite important. I am, of course, looking forward to this year’s Mid Buckinghamshire pantomime—I assume the hon. Member for Mid Buckinghamshire will play the role of a secret service special agent.

To return to the clause, the Government accept that employers must be allowed to make decisions about what is and is not reasonably feasible so that they can ensure that business operations are able to run effectively. We are therefore retaining the existing legal framework, which allows employers to reject flexible working requests on one of eight specified business grounds. The Bill makes it more likely that requests will be accepted and that flexible working will become the default. It contains the three following measures. First, it creates a new requirement that employers may refuse a flexible working request only if it is reasonable to do so on the basis of at least one of the eight specified business grounds.

Secondly, the Bill requires employers to state the ground or grounds for refusing requests and explain why they consider it reasonable to do so. Under the current framework, an employer must only notify the employee of the decision; there is no requirement for an employer to explain the basis of a decision, which can mean a lack of clarity and transparency for the employee if their application is refused. While these measures do not remove the employer’s ability to make a decision on whether a flexible working request is reasonable, they do require the employer to explain and justify that decision and, in turn, the measures open up that decision for scrutiny by an employment tribunal.

Finally, the current legislation is silent on how to meet the requirement to consult when rejecting a request. We think it is important to provide employers and employees with greater clarity around the process if the employer intends to reject a request, so we are inserting a new power for the Secretary of State to make regulations setting out the steps that employers must take when consulting with the employee before deciding to refuse a flexible working application. We do not want to create bureaucracy for the sake of it. To ensure we get the balance right, we will work with stakeholders and undertake a full public consultation in partnership with business, trade unions and third sector bodies. The consultation will consider what the process should be, and that will ensure we get the balance right before we lay regulations.

Taken together, these measures are designed to encourage the acceptance of more requests, to improve clarity on decisions, to encourage more careful consideration of requests and to encourage constructive dialogue between employers and employees. We believe that this will help to make flexible working the default in a sensible and pragmatic way.

There is strong evidence to support our approach. Research by the equal parenting project, for example, found that 75% of UK managers believe that flexible working increases productivity and that 62.5% believe that it boosts motivation. Yet, according to the flexible jobs index 2023, although nine in 10 people want to work flexibly, only six in 10 employees are currently working flexibly and only three in 10 jobs are advertised with flexible working.

--- Later in debate ---

[Uma Kumaran]

I apologise, Sir Christopher.

[Dame Nia Griffith]

I thank my hon. Friend for her valuable contribution; she reminds us that flexible working can often be a real help in getting people into work.

The changes in the Bill will support employers and employees to agree solutions that work for both parties and increase the take-up of flexible working. The Opposition amendments, new clause 26 and amendment 132, proposed by the hon. Member for Mid Buckinghamshire, include a requirement for an assessment of the impact of the Bill’s provisions on flexible working to be produced before the provisions can be commenced. The Government resist those amendments. They have already produced a comprehensive set of impact assessments, which was published alongside Second Reading and based on the best available evidence on the potential impact of the Bill’s measures on business, workers and the wider economy.

Our proportionate assessment included labour market and broader macroeconomic analysis considering the impact of these changes on individuals and businesses. It also provided a breakdown of the impacts on employment tribunals, small business and individuals with protected characteristics. We intend to refine that analysis over time, working closely with businesses, trade unions, academics and think-tanks. The analysis published alongside the Bill describes the overall business impact as neutral. Businesses may see benefits in improved productivity, employee loyalty, worker satisfaction, staff retention and the ability to attract a wider range of employees. It is important to remember that businesses can still reject flexible working requests on eight valid business grounds, including the burden of costs.

As is standard practice, the Government will publish an enactment impact assessment once the Bill reaches Royal Assent, in line with the requirements of the better regulation framework. That will account for where the primary legislation in the Bill has been amended in its passage through Parliament in such a way as to change the impacts of the policy on business significantly. That impact assessment will be published alongside the enacted legislation. We will then publish further analysis alongside future consultations, ahead of secondary legislation to meet our better regulation requirements. I therefore ask Opposition Members to withdraw their amendments.

[Greg Smith]

New clause 26 and amendment 132 are about impact assessments of flexible working. Amid her speculation about the Mid Buckinghamshire pantomime, to which I trust she will be buying a ticket, the Minister talked about impact assessments that have already been made. But we know what the Regulatory Policy Committee has said about those impact assessments:

“there is little evidence presented that employers are rejecting requests”

for flexible working “unreasonably”.

We should remember that the previous Conservative Government, although they want to repeal it, introduced the right to request flexible working from the first day of employment through the Employment Relations (Flexible Working Act) 2023, which came into force in April. The RPC has said that the Government have not considered the effectiveness of the previous Bill—it might be difficult to do so given how recently it has come into force—and that it is therefore

“difficult to assess the justification for the additional measures”

in the Bill. The RPC also says that the Government have not considered the effectiveness of non-regulatory options such as raising awareness of the right to request flexible working. So the Government have not made the case for why this is necessary. I do not believe the Minister gave a clear explanation either. I am sure she will have a second chance to do so in summing up.

The RPC rebukes the Government for failing to take into account the costs this measure will impose on business, namely

“the costs to employers of engaging with more ET cases and hearings taking longer because they will now be considering wider and more subjective factors”

and that the Government’s own impact assessment

“assumes that there are no net costs to employers of accepting requests, on the basis that they would do so only if the benefits at least matched the costs. However, this does not necessarily hold as rational, risk averse employers will also factor in the increased cost/risk of rejecting requests under the proposal, seeking to avoid costly employment tribunals and, especially for SMBs”—

--- Later in debate ---

[Alex McIntyre]

The “cake and eat it” argument is the point I was trying to make. I advised on flexible working requests regularly when in private practice, where individuals and, in particular, employers were asking what their rights were in respect of a request.

The hon. Gentleman raised two points, the first of which was about costs. Again, I point to the exemptions. The burden of additional costs is one of the exemptions by which an employer can say that it is not reasonable to accept a flexible working request. The balance between having rights for employees and making sure that they are not too much of a burden on business is important. The burden of additional costs is already explicitly covered in the legislation.

Secondly, in relation to tribunals, one of the issues with the current system is the lack of explanation provided. Employees often believe the worst, even if that is not always the case. They might make their request, with valid reasons, and if their employer tells them a flat no, with no further explanation, they often believe the worst and bring a tribunal claim.

Providing that explanation at the beginning requires the employer to think about the request. Not every employer is an excellent, flexible employer; some employers think that by offering flexible working, they will somehow lose productivity, whereas lots of studies have shown the opposite. Through that provision, employers will think about the request, engage with the process and the exemptions, think about what that means for their business, and provide a reasoned explanation.

That will not take as long as we might think, because there are only eight exemptions and people know their business very well. When they give that written explanation, it can be relatively short. It does not have to be “War and Peace”—I should have mentioned another James Bond novel—because it is just to give some background. We will then have an explanation that can be used in a tribunal. That will really assist tribunals in dealing with these cases, because there will be a written explanation of why the decision has been taken.

There are loads of cases in which people bring claims of discrimination because their flexible working requests have been rejected. Those can take up lots of time, when there has been just a misunderstanding between the employer and the employee. By introducing the requirement to provide an explanation, and for the employer to think through the reasonableness of it, there might hopefully be fewer claims in the employment tribunal.

[Dame Nia Griffith]

Let me make a couple of quick points to sum up. The Opposition are trying to say that most businesses already do this, but this is not about the principle of introducing flexible working; it is about making the process straightforward, clear and consistent across businesses. As my hon. Friend the Member for Gloucester said, by ensuring that clarity, it may well reduce the number of cases that get taken to tribunal.

If most businesses are already doing this, why do we want to legislate? Well, we do not want those businesses to be penalised for doing the right thing. We want everybody to be offered the opportunity of flexible working within the reasonableness of their working situation, and with the opportunity for employers to refuse on the eight specified grounds. That will spread best practice not only in it being offered in all places of employment, but in the way that any request for flexible working is dealt with. That is an explanation of the context.

As we have clearly said, our impact assessment has provided an initial analysis of the impacts that can follow, but we will update and define them as we further develop the policy. In fact, part of the clause is specifically about the Secretary of State having the power to provide further detail. We are confident that as most businesses already participate in this process, make the appropriate responses to their employees and understand the system, it will be not a huge new burden to them in any way. I remind Committee members yet again that dealing appropriately with requests for flexible working can considerably help recruitment and retention for businesses. On that note, we reject the amendments tabled by the Opposition.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

Statutory sick pay: removal of waiting period

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss Government new clause 5—Statutory sick pay in Northern Ireland: removal of waiting period.

Employment Rights Bill (Ninth sitting)

Nia Griffith Excerpts

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[The Chair]

With this it will be convenient to discuss the following:

Clause 12 stand part.

New clause 16—Publication of information about parental leave policies: regulations—

“(1) The Secretary of State must make regulations to require any employer with more than 250 employees to publish information on the internet about the employer’s policies on parental leave and pay for parental leave.

(2) Regulations under subsection (1) must be published within one year of this Act being passed.

(3) Regulations under this section are subject to the affirmative regulation procedure.”

This new clause would require companies with more than 250 employees to publish information about their parental leave and pay policies.

New clause 17—Entitlement to paternity leave—

“(1) The Employment Rights Act 1996 is amended as follows.

(2) In section 80A (entitlement to paternity leave: birth)—

(a) in subsection (3), for ‘two’ substitute ‘six’,

(b) in subsection (4), for ‘56 days’ substitute ‘52 weeks’.

(3) In section 80B (entitlement to paternity leave: adoption)—

(a) in subsection (3), for ‘two’ substitute ‘six’,

(b) in subsection (4), for ‘56 days’ substitute ‘52 weeks’.”

This new clause sets out an entitlement to paternity leave.

[The Minister for Equalities (Dame Nia Griffith)]

Clauses 11 and 12 enable employed parents to give notice of their intention to take parental leave or paternity leave from their first day in a new job. Clause 11 does that for parental leave by amending section 76 of the Employment Rights Act 1996 to remove the power for the Secretary of State to make regulations relating to the duration for which an employee must be employed before being entitled to be absent from work on parental leave. Clause 12 works in a similar manner for paternity leave, amending sections 80A and 80B of the Employment Rights Act 1996 to remove the power for the Secretary to make regulations relating to the duration for which an employee must be employed before being entitled to take paternity leave.

Currently, parents must complete one year of continuous service to qualify for parental leave, and 26 weeks of continuous service to qualify for paternity leave. Clause 11 will make an additional 1.5 million parents each year eligible for parental leave, while clause 12 will bring an additional 32,300 fathers and partners a year into scope for paternity leave. Clauses 11 and 12 will make it easier for employees to move jobs, which may enable them to secure wage increases without losing their ability to take parental leave or paternity leave. Removing deterrents to changing jobs is important, because research by the Office for National Statistics and the Resolution Foundation shows that people who move jobs are likely to get wage increases.

There is also a benefit from our changes to employers, who will gain access to a larger pool of applicants for vacancies, as parents will be more likely to apply for new jobs because they will not lose their access to those leave entitlements. We have engaged with stakeholders who represent the interests of parents, and they have said that they welcome the removal of continuity of service for parental and paternity leave. Making those entitlements available from day one also brings parental and paternity leave into line with other entitlements, such as maternity and adoption leave, creating a clearer and fairer system.

New clause 16 would commit the Government to introducing regulations that require organisations employing more than 250 people to publish information about their parental leave and pay policies. The hon. Member for Torbay is right to highlight the significance of publishing parental leave policies. It is certainly true that parental leave and pay policies are not perks on a par with gym memberships; they are critical policies that allow people to manage their lives. As well as being hugely important at a personal level, parental leave and pay policies are critical for addressing wider social and economic issues.

The Bill already does a lot to support working families. It reforms the right to request flexible working to make it the default. It puts in place legislation that makes it unlawful to dismiss pregnant women, mothers on maternity leave and mothers who return to work for a six-month period after they return, except in very specific circumstances. It also requires large employers to produce equality action plans. That is why at this point we believe that not requiring publication of parental policies in the Bill is the correct approach. It strikes the right balance between doing more to help working families and being manageable for employers to respond and adapt to.

New clause 17 would increase the length of paternity leave from two weeks to six weeks and also seeks to introduce the ability to take paternity leave at any time in the first year following birth or adoption. The Government value the vital role that fathers and partners play in caring for children and supporting their partners. We recognise that parental leave and pay entitlements, such as paternity leave and pay, play a key role in their ability to do that. That is why we are taking the first step of making paternity and parental leave day one rights.

Recent changes to paternity leave and pay, which took effect on 6 April 2024, allow parents to take their leave and pay in two non-consecutive weeks; to take their leave and pay at any point in the first year after the birth or adoption of their child, rather than only within the first eight weeks; and to give shorter notice for each period of leave. That means that parents are now able to take their paternity leave at any point in the first year following their child’s birth or adoption. While I very much support the intent behind this element of the new clause tabled by the hon. Member for Torbay, it is already in place and so is not required.

If fathers or partners wish to take a longer period of leave and pay, shared parental leave and pay is an option they can consider. Up to 50 weeks of leave and up to 37 weeks of pay can be “created” for parents to share from maternity entitlements that the mother does not intend to use. Parents can use the scheme to take leave together for up to six months or to intersperse periods of leave with periods of work.

We know that more needs to be done to ensure that the parental leave system provides the best possible support for working families. That is why we have committed to a review of the parental leave system. The review will be conducted separately to the Bill and work is already under way across Government on planning for its delivery. I therefore commend clauses 11 and 12 to the Committee and invite the hon. Member for Torbay not to move new clauses 16 and 17.

[The Chair]

Before I call the shadow Minister, I should tell the Committee that there may be a fire alarm this morning. We will be advised on what to do if that happens.

--- Later in debate ---

[Sir Ashley Fox]

Sorry. I ask her whether she could advise on what analysis the Government have done on the likely cost to small businesses of making maternity-paternity shared parental leave a day one right. Although I agree that these are important rights for parents, I wonder what analysis has been done. I am concerned for small businesses, such as those with only one or two employees. If they were to take on a new employee, they could immediately find that they have to grant leave and pay, as well as find a substitute worker. I fully accept the importance of these rights, but is the Minister satisfied that it is appropriate to impose those burdens on small businesses, particularly given the other burdens in the Bill, the national insurance charges in the Budget and all other manner of taxes and impositions that the Government are introducing?

[Dame Nia Griffith]

Let me address that last point first. We have had engagement with stakeholders who represent families, such as Pregnant Then Screwed and Maternity Action, which has shown that they welcome the removal of continuity of service for paternity leave. We can all understand the benefits that that brings in terms of people being able to apply for new jobs and move to better-paid jobs. While the change will have a cost to businesses, it is estimated to be relatively small, at £6.2 million a year, and we believe that the positive impact on families will be much larger. This clause will make 10,000 more fathers and partners eligible for paternity leave, including those with low job security, who are most likely not to meet the current qualifying requirements. I remind the Committee that it is often those people in the most transitory jobs who have the most precarious financial positions and the least opportunity to spend time with their families.

I will address the comments made by the Liberal Democrat Front-Bench spokesman, the hon. Member for Torbay. We are making immediate changes to paternity leave through this Bill. We will make paternity leave available from day one in a new job and enable paternity leave to be taken after shared parental leave. The flexibility that this will give rise to will enable employees to move towards better-paid employment without the fear of losing their right to protected time away to be with their families. We have also committed to review the entire parental leave system to ensure that it best supports families. As I mentioned earlier, that is already in progress across the Government.

I will make a small technical point. The effect of new clause 17 is that fathers and partners who are eligible for paternity leave would be entitled to six weeks of leave, adding four weeks to the existing two weeks offered by the current paternity leave entitlement. The new clause would not affect the entitlement window in which fathers and partners need to take their paternity leave, as this was extended from 56 days to 52 weeks in April 2024. However, the change to enable paternity leave to be taken over 52 weeks was made in secondary legislation. The new clause would make this change in primary legislation, which would mean that it would not be possible to make any future changes to the period in which a parent could take parental leave in secondary legislation. On that note, I commend clauses 11 and 12 to the Committee.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12 ordered to stand part of the Bill.

Clause 13

Ability to take paternity leave following shared parental leave

Question proposed, That the clause stand part of the Bill.

[Dame Nia Griffith]

The point of clause 13 is to give employed fathers, partners and secondary adopters, including those who have their children through a surrogacy arrangement, the ability to take paternity leave and pay after taking shared parental leave and pay. The clause amends the Employment Rights Act 1996 by removing the limitation that prevents fathers and partners from taking paternity leave and pay after shared parental leave and pay. In April 2024, changes were made to paternity leave and pay, enabling it to be taken at any time in the first year following a child’s birth or adoption. Before then, parents had eight weeks to take their paternity leave and pay. That change means that parents are now more likely to take their paternity leave and pay after their shared parental leave and pay, as they now have more time to take their paternity leave and pay. Removing that restriction creates more flexibility for parents and means that parents who choose to take their shared parental leave and pay first will not then lose their ability to take their entitlement to paternity leave and pay.

Currently, if shared parental leave and pay is taken, parents lose any remaining paternity leave and pay entitlements they have not yet used. Removing that restriction creates a more supportive framework for families by allowing greater flexibility in how parents structure their leave, and ensures that they will not inadvertently lose access to the leave and pay they are entitled to.

--- Later in debate ---

[Sarah Gibson]

Given the Liberal Democrat new clauses we discussed earlier, it is clear that we welcome any flexibility that encourages paternity leave and allows parents to share the leave in an equal and welcoming way. Therefore, we welcome this clause.

[Dame Nia Griffith]

In response to the point made by the hon. Member for Mid Buckinghamshire, there are clearly defined time limits, and I am sure that most employers and employees will manage to work this out. I just point out gently that the impact assessment on these provisions received a green rating, so some work has been done on this. I remind Members that we are undertaking a wider review as well in respect of paternity and parental leave.

Question put and agreed to.

Clause 13 accordingly ordered to stand part of the Bill.

Clause 14

Bereavement leave

Question proposed, That the clause stand part of the Bill.

[Dame Nia Griffith]

Clause 14 establishes a new day one right to bereavement leave. The loss of a loved one is a deeply personal experience, and a sad reality that almost all of us will experience. When that happens, the grief that comes with a loss will impact us all in different ways. Some individuals may need time and space away from other demands, including work, to begin to process their loss. Others may prefer to keep working to maintain a sense of familiarity while adjusting to a new normal. Thankfully, for those who need it, the majority of employers respond compassionately to requests for time away from work, and recognise the key role they can play in supporting their employees during this time. In the absence, however, of a statutory right, not all employees may be afforded the time off they need to grieve. We estimate that this would benefit at least 900,000 workers each year. That is a significant proportion of the working population who will be able to access bereavement leave from day one of employment.

Currently, the only bereavement entitlement in legislation is parental bereavement leave, which provides two weeks of leave for parents who experience the devastating loss of their child, from 24 completed weeks of pregnancy until the child reaches the age of 18. That is set out in sections 80EA to 80EE of the Employment Rights Act 1996 and in the Parental Bereavement Leave Regulations 2020. Subsections (2) and (3) of clause 14 amend those sections of the 1996 Act, so that the duty on the Secretary of State to lay regulations establishing parental bereavement leave is widened to require regulations providing for bereavement leave for other loved ones as well.

The amendments in subsection (3) ensure that the regulations, in the case of the new bereavement entitlement, must set out the following: first, the eligibility of the new entitlement by definition of the employee’s relationship to the deceased; secondly, the length of leave, which must be a minimum of one week; thirdly, when the leave must be taken, which must be before the end of at least 56 days after the person’s death; and finally, how the leave is to be taken, such as in one block or two blocks, or whatever is appropriate.

Should an employee suffer multiple bereavements, the clause sets out that they are entitled to leave in respect of each person who has passed away. The approach to regulations mirrors that taken when establishing parental bereavement leave and allows similar provisions to be included in the new regulations. Due to the sensitive and personal nature of bereavement, we will consult stakeholders on the details to be set out in regulations to ensure that the entitlement is constructed with the needs of employees and employers at the forefront.

Subsections (4) to (11) make amendments to other provisions of the 1996 Act to enable the regulations to provide important protections for employees who take bereavement leave, such as protection against detriment, protection of contractual rights, and protection for treating a dismissal that takes place for a reason relating to bereavement leave as unfair.

Subsections (12) to (13) make consequential amendments to His Majesty’s Treasury legislation to provide for how persons on bereavement leave are to be taken into account when assessing an employee’s “committed time” or the number of employees for the purpose of certain initiatives or schemes, in the same way as other family-related entitlements. Subsection (14) makes consequential amendments to the Parental Bereavement (Leave and Pay) Act 2018 to remove provisions that no longer have any effect following the amendments made by clause 14 of this Bill.

[Greg Smith]

I am grateful to the Minister for her explanation of clause 14. It is quite clear on a purely human level that bereavement can strike any family and any individual, often with zero notice or ability to plan, and it is therefore a basic tenet of humanity that we would all expect employers to be sensitive, generous and sympathetic to any employee who finds themselves in that position. For the record, it is certainly my experience that the vast majority of businesses and employers show compassion, sensitivity and generosity to ensure that anybody who is bereaved has the time, space and freedom to be able to grieve, plan for things such as funerals and start the very hard process of not just saying goodbye to that loved one, but putting various affairs in order, such as registering the death. People have to go through a high burden of bureaucracy when they find themselves in that position.

The core principle of the proposals is fundamentally a good one, and does not warrant opposition. However, there is an area that I think needs a little more debate and potentially some refinement. The Minister spoke about the need to consult and to get these regulations right, and it is important that we do that. I do not in any way oppose the principle of the proposals, but I gently suggest that perhaps it would have been better to do the consultation first, so that this could have been clearer in the legislation as it goes forward. I repeat, however, that I say that not to distract from the good principle that sits underneath these regulations.

I ask the Minister to reflect further on the point from the evidence session about bereavement leave being available to parents who have lost their child after 24 weeks of pregnancy. There are many people who suffer the loss of a pregnancy before 24 weeks. That is one of the most heartbreaking things for mothers, fathers and wider families, and it happens every single day up and down the land. After all the joy, excitement and future planning that go into any mother’s, father’s and family’s life when they find out that they are expecting a child, the often very sudden news that that pregnancy has not made it comes as a huge shock, often with no notice.

There are things that a family, a mother, a father, will go through when they find out that that pregnancy has not been viable and has sadly ended under 24 weeks, including being taken to a small room and being asked the direct question—which, I assure the Committee makes the ears prick up and the reality of what has just happened come into sharp focus—about whether you wish to attend the burial of that failed pregnancy. That brings into sharp focus that you are actually being asked to say goodbye to your child. That can happen at any point in a pregnancy; it happened to my wife at about 14 weeks in 2018, and I remember vividly sitting in that room, having to fill out what seemed like the “Yellow Pages”-worth of forms, and reflecting that what should have been our second child was not going to be our second child. That takes some getting over, and it often involves surgery for the mother afterwards.

Although we have no formal amendment on this at this stage—I reserve the right to perhaps revisit it on Report—it is worth the Government reflecting on a genuine cross-party basis whether the 24-week period can be substantially reduced to give time to families who are saying goodbye. I do not want to get into the debates about when is a child a child, but it is devastating for families who go through that experience, and if the Government can find a way to ensure that families facing those circumstances can have some breathing space, so that we do not just have the “Back to work tomorrow, please” mentality that persists in this country, it would be a welcome and positive step. That might yet bring the whole House together and ensure that people have, as I say, space and time to reflect on what has just happened—to grieve, come back together again and then hopefully plan for the future.

[Sarah Gibson]

After that incredibly moving speech by the hon. Member for Mid Buckinghamshire, I cannot help but share the absolute concerns of friends of mine who have also lost children in pregnancy quite early on. I appreciate that that causes devastation, and I would be very happy to support any amendments that are suggested on Report. Perhaps an earlier date for bereavement would be appropriate.

[Dame Nia Griffith]

I, too, thank the hon. Member for Mid Buckinghamshire for sharing such a personal story with us today. As he says, the loss of a child or a baby at any stage is incredibly upsetting. Parents who suffer a stillbirth may be entitled to parental bereavement leave and pay. Although there is no statutory entitlement for miscarriage before 24 weeks, we expect employers to respond with compassion and understanding and encourage employees to discuss the support that they need with their employer. A woman is protected against discrimination in the workplace due to pregnancy, any illness related to pregnancy or absence of that illness. That includes any illness caused by miscarriage extending to two weeks after the end of the pregnancy. After that, the woman is still protected by the Equality Act 2010 sex discrimination protections if she is treated less favourably because she suffered a miscarriage.

Clause 20 will also allow for regulations to be made about dismissal during a protected period of pregnancy, and the enhanced dismissal protection policy will cover women during their pregnancy. I point out that at the moment the Women and Equalities Committee is looking into that and doing an inquiry. We will study the outcome of that very closely as we take our policies forward.

Question put and agreed to.

Clause 14 accordingly ordered to stand part of the Bill.

Clause 15

Employers to take all reasonable steps to prevent sexual harassment

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 130, in clause 16, page 30, line 24, at end insert—

“(1D) In exercising their duties under this section, an employer must have regard to protecting freedom of expression.

(1E) In subsection (1D), ‘freedom of expression’ is defined in accordance with Schedule 1 of the Human Rights Act 1998.”

This amendment would require employers to have regard to protecting freedom of expression when exercising the Bill’s duty not to permit harassment of their employees.

Amendment 131, in clause 16, page 30, line 24, at end insert—

“(1D) Subsection (1A) shall not apply to—

(a) higher education institutions, or

(b) providers of─

(i) hotels and similar accommodation;

(ii) holiday and other short-stay accommodation;

(iii) restaurants and mobile food service activities; and

(iv) beverage serving activities.”

This amendment would exclude higher education institutions and hospitality providers from the Bill’s duties for employers not to permit harassment of their employees.

Clauses 16 and 17 stand part.

New clause 29—Employer duties on harassment: impact assessment—

“(1) The Secretary of State must carry out an assessment of the likely impact of sections 15 to 18 of this Act on employers.

(2) The assessment must—

(a) report on the extent to which the prevalence of third-party harassment makes the case for the measures in sections 15 to 18;

(b) include an assessment of the impact of sections 15 to 18 on free speech;

(c) include an assessment of the likely costs to employers of sections 15 to 18;

(d) include—

(i) an assessment of which occupations might be at particular risk of third-party harassment through no fault of the employer, and

(ii) proposals for mitigations that can be put in place for employers employing people in such occupations.

(3) The Secretary of State must lay a report setting out the findings of the assessment before each House of Parliament.”

This new clause requires the Secretary of State to assess the impact of the provisions of Clauses 15 to 18.

New clause 39—Duty to prevent violence and harassment in the workplace—

“(1) Section 2 of the Health and Safety at Work etc. Act 1974 is amended as follows.

(2) After subsection (2)(e) insert—

‘(f) the adoption of proactive and preventative measures to protect all persons working in their workplace from violence and harassment, including—

(i) gender-based violence;

(ii) sexual harassment;

(iii) psychological and emotional abuse;

(iv) physical and sexual abuse;

(v) stalking and harassment, including online harassment;

(vi) threats of violence.’

(3) After subsection (3) insert—

‘(3A) It shall be the duty of every employer to prepare, and as often as may be appropriate revise, an assessment to identify potential risks of violence and harassment in the workplace and implement policies and procedures to eliminate these risks so far as is reasonably practicable.

(3B) It shall be the duty of every employer to provide training to all employees on recognising and preventing violence and harassment in the workplace, with a focus on gender-responsive approaches.

(3C) In subsection (3B) a “gender-responsive approach” means taking into account the various needs, interests, and experiences of people of different gender identities, including women and girls, when designing and implementing policies and procedures.

(3D) In this section, “persons working in the workplace” includes—

(a) employees;

(b) full-time, part-time, and temporary workers; and

(c) interns and apprentices.

(3E) In subsection (2)(f) and subsections (3A) and (3B), a reference to the workplace includes remote and hybrid work environments.’”

This new clause will amend the Health and Safety at Work etc. Act 1974 to place a duty on employers to protect all those working in their workplace from gender-based violence and harassment.

New clause 40—Expanded duties of the Health and Safety Executive—

“In the Health and Safety at Work etc. Act 1974, after section 11 (functions of the Executive) insert—

‘11ZA Duties of the Executive: health and safety framework on violence and harassment

(1) It shall be the duty of the Executive to develop, publish and as often as may be appropriate revise a health and safety framework on violence and harassment in the workplace.

(2) This framework shall include specific provisions relating to—

(a) the prevention of gender-based violence and harassment of those in the workplace including the prevention of physical, emotional, and psychological abuse;

(b) the duty of employers to create safe and inclusive workplaces and the preventative measures they must adopt; and

(c) the use of monitoring and enforcement mechanisms to ensure compliance with the duty of the employer in relation to violence and harassment (see section 2(2)(f)).

(3) The Executive shall work with other relevant bodies, including the Equality and Human Rights Commission and law enforcement agencies, to develop and revise this framework.

11ZB Duties of the Executive: guidance for employers

The Executive shall, in consultation with such other persons as it considers to be relevant, issue guidance for employers about the protection of those facing violence and harassment on the basis of gender in the workplace by—

(a) implementing workplace policies to prevent violence and harassment;

(b) establishing confidential reporting mechanisms to allow victims to report incidents;

(c) conducting risk assessments and ensuring compliance with the health and safety framework (see section 11ZA);

(d) reporting and addressing incidents of violence and harassment; and

(e) supporting victims of violence and harassment, including making accommodations in the workplace to support such victims.’”

This new clause will create a duty on the Health and Safety Executive to develop a health and safety framework on violence and harassment and to issue guidance for employers about the protection of those facing violence and harassment on the basis of gender in the workplace.

Amendment 135, in clause 118, page 105, line 20, at end insert—

“(3A) But no regulations under subsection (3) may be made to bring into force sections 15 to 18 of this Act until the findings set out in the report under section [employer duties on harassment: impact assessment] have been approved by a resolution of the House of Commons on a motion moved by a Minister of the Crown.”

This amendment is linked to NC29.

[Dame Nia Griffith]

If I may just correct the record, there was not an impact assessment on clause 13—I inadvertently said that there was—because the impact is so small. But there was on clauses 11 and 12, and they received a rating of green.

[The Chair]

Thank you for that clarification.

[Dame Nia Griffith]

I will now speak to clauses 15 to 17, new clauses 29, 39 and 40, and amendments 130, 131 and 135. Clause 15 will strengthen the new duty on employers to take reasonable steps to prevent sexual harassment of their employees, which came into force on 26 October 2024 under the Equality Act 2010. Clause 15 requires that employers must take all reasonable steps to prevent sexual harassment of their employees. Including “all” emphasises the thorough approach that employers must take to prevent that. At the same time, the requirement remains limited to steps that are “reasonable”. The amended duty will mirror the existing statutory defence for an employer regarding vicarious liability, which requires them to show that they have taken all reasonable steps to prevent harassment.

The concept of “all reasonable steps” has the advantage of being well established and familiar to employers and employment tribunals. This will therefore provide a consistent threshold and decrease uncertainty for all. The Government intend to provide businesses with clear guidance to ensure that they are fully supported in complying with the new legislation.

Clause 16 will introduce an obligation on employers not to permit the harassment of their employees by third parties under section 40 of the Equality Act. As well as employers taking action to prevent sexual harassment, workplaces and working conditions must be free from all forms of harassment. The clause therefore encompasses all three types of harassment set out under section 26 of the Equality Act. As well as sexual harassment, it covers harassment related to a protected characteristic that is covered by the existing harassment provision. It also covers treating someone less favourably because they have either submitted to or rejected sexual harassment, or harassment related to sex or to gender reassignment.

To avoid liability, employers will need to do what is reasonable. What constitutes “all reasonable steps” for third-party harassment will depend on the specific circumstances of the employer. Employers will need to consider the nature of any contact with third parties—for example, the type of third party, the frequency and the environment. In certain sectors, there may be more regular worker interaction with third-party contractors than in others. This amendment to the Equality Act will give much-needed clarity on the rights and responsibilities of employees and employers in these scenarios, and require employers to take action to prevent such harassment from occurring.

The burden of holding perpetrators and employers to account and of driving change is too great to be shouldered alone by employees who have experienced harassment. This measure therefore sends a clear signal to all employers that they must take steps against third-party harassment. That is the right thing to do because tackling misogyny and violence against women and girls is a societal issue in which employers can play a key role. This also means that victims can be confident that they are protected by the law if their employer has not taken all reasonable steps to protect them, and that they are able to take legal action if they so wish. This measure will therefore benefit all employees by making workplaces safer and ensuring that everyone has the same opportunity to succeed at work.

As I said earlier, oral evidence from the Fawcett Society shows that one in five women have been sexually assaulted in the workplace by third parties. These measures could have a positive effect on women, those with disabilities and ethnic minorities across the UK.

Clause 17 introduces a power to make regulations to specify steps that are reasonable for employers to take to prevent sexual harassment. That is to meet the requirements set out in the Equality Act 2010 that employers take all reasonable steps to prevent sexual harassment of their employees. Those are contained in section 40A, the general preventative duty; section 40, as amended by this Bill, to the extent it relates to sexual harassment by third parties; and section 109, employers’ vicarious liability, where that relates to a failure to prevent the sexual harassment. The provisions place broad requirements on employers, but it will be important to ensure that specific steps are taken where the evidence demonstrates that they are proportionate and needed to prevent sexual harassment. The regulations may also require an employer to have regard to specified matters when taking those steps.

The Government have already produced an extensive set of impact assessments, published on Second Reading and based on the best available evidence for the potential impact on business, workers and the wider economy. We intend to refine that analysis over time, working closely with businesses, trade unions, academics, think-tanks and the Regulatory Policy Committee. We will publish an enactment impact assessment once the Bill reaches Royal Assent, in line with the better regulation framework requirements. That will account for where primary legislation in the Bill has been amended in its passage through Parliament in such a way as to change significantly the impacts of the policy on business. That impact assessment will be published alongside the enacted legislation. In addition, we will publish further analysis alongside future consultations ahead of any secondary legislation, to meet our better regulation framework requirements.

No one should fear being sexually assaulted in the workplace, and the measures go further to protect employees. One in five women has been sexually assaulted in the workplace by someone outside their organisation. The measures could have a positive effect on women, those with disabilities, and ethnic minorities across the UK. The amendments and new clauses in this group would not add value, given the extensive impact assessment to which the Government have already committed.

On new clauses 39 and 40, I reassure the Committee that the Government entirely support the importance of ensuring that workers, including women and girls, are protected from workplace violence and harassment. We already have in place a strong and appropriate regulatory regime that provides protection to workers from violence and harassment. Through the Health and Safety at Work etc. Act 1974 and the statutory provisions made under it, employers already have a duty to protect their workers from health and safety risks, including workplace violence, and they must consider ways in which they can remove or reduce such risk. That legislation applies to everyone, irrespective of whether the victims have protected characteristics—it is a law to protect all workers.

The Health and Safety at Work etc. Act, along with associated legislation, requires employers to reduce the risks of workplace violence. As part of that, the Management of Health and Safety at Work Regulations 1999 require employers first to assess the risks in the workplace, including the potential for violence, and then to take appropriate action to reduce those risks. The Health and Safety Executive and local authorities, which are responsible for enforcing the 1974 Act, carry out proactive and reactive work to ensure that employers are complying with their duties under the Act to assess the risks and are implementing appropriate control measures to protect their workers, and others affected by their work, from workplace violence.

The Health and Safety Executive has also published a range of readily available guidance on its website to assist employers in complying with their legal obligations. The right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) has tabled new clause 40, asking the HSE to publish a health and safety framework on violence and harassment in the workplace, including violence against women and girls in the workplace, but employers already have such duties under the 1999 regulations, which require them to have suitable and sufficient arrangements in place to manage health and safety in the workplace, including violence and aggression.

Harassment in the workplace could be covered by the Health and Safety at Work etc. Act, but the HSE does not act where a more appropriate regulator has specific responsibility, or where there is more directly applicable legislation. Police already have powers to prosecute harassment offences under the Protection from Harassment Act 1997, and the Equality and Human Rights Commission can take action under the Equality Act 2010.

Employment Rights Bill (Tenth sitting)

Nia Griffith Excerpts

Committee stage
Tuesday 10th December 2024 Public Bill Committees

[Michael Wheeler]

As I said, I listened closely to the points that Opposition Members made. Like my hon. Friend the Member for Gloucester, I will allow the Minister to come back on the specifics of impact assessments. The point I am trying to make is that we are all looking at the same Bill and the same information. We might desire more information at this point, but we are exercising our judgment. Regardless of the specifics of any impact assessment, I think it is patently obvious that it is a disproportionate response to the concerns raised by Opposition Members to exclude entire sectors from the protections that we are discussing.

On hospitality, we heard in oral evidence from the trade union Unite—of which I am not a member—that it had surveyed its hospitality workers and found that 56% of them had considered leaving the sector entirely as a result of the sexual harassment they were experiencing. We have heard throughout the debate about the desire to support businesses. We heard from UKHospitality about struggles with retention and how measures in the Bill, outside of this one, will aid with that. I hope we can all agree that, beyond edge cases that might raise concerns, the significant protections for workers that we are discussing would be not only good for those workers, but fundamentally good for business.

[The Minister for Equalities (Dame Nia Griffith)]

We have had a full and thorough debate, and I thank my hon. Friends—in particular my learned hon. Friends the Members for High Peak and for Gloucester—for making many valuable arguments, and everybody for contributing their personal experiences.

I remind the Committee that clause 15 requires employers to take all reasonable steps to prevent sexual harassment of their employees. Including “all” emphasises the thorough approach that employers must take; at the same time, the requirement remains limited to steps that are “reasonable”. The concept of “all reasonable steps” has the advantage of being well established and familiar to employers and employment tribunals. That is a really important point, because the clause clarifies and makes things easier and more straightforward, rather than complicated and burdensome, which is the implication of some of the amendments.

I thank the hon. Member for Dundee Central for speaking to new clauses 39 and 40 tabled by the right hon. Member for Dwyfor Meirionnydd. I pay tribute to the right hon. Lady for her work on violence against women and on stalking, and indeed to the work of her predecessor on stalking. I reassure the hon. Gentleman and the right hon. Lady that the Government entirely support the importance of ensuring that workers, including women and girls, are protected from workplace violence and harassment. There is already in place a strong and appropriate regulatory regime that provides protection to workers from violence and harassment. If the hon. Gentleman so desires, I will ask the Health and Safety Executive to write to him on that point.

[Chris Law]

I thank the Minister. I would appreciate that.

[Dame Nia Griffith]

I will ensure that that happens.

The hon. Member for Mid Buckinghamshire questioned the necessity of this new legislation, so let me explain again. Often, harassment legislation, including the criminal law, allows an individual to take legal action against a perpetrator. However, that does not go far enough in tackling the wider issues and root causes. The burden of holding perpetrators to account and driving change is too great to be shouldered purely by employees who have experienced harassment. This measure therefore sends a clear signal to all employers that they must take all reasonable steps to prevent sexual harassment.

I think the hon. Member is also concerned that the clauses that we are discussing risk being unworkable or burdensome. It is important to remember that they simply require employers to do what is reasonable for their specific circumstances. That means that employers will not be penalised for failing to take unworkable or impractical steps. The clauses will not require employers to foresee the wholly unforeseeable or to police all customers’ private conversations. On one hand, the hon. Member acknowledges that good businesses already accept the need to take all reasonable steps to prevent sexual harassment, but on the other, he wants to make exceptions for a large number of businesses.

[Greg Smith]

I would be very happy to discuss with the Minister and her colleagues in Government the specific points I made about sectors such as higher education and concerns about the no-platforming of perfectly moderate speakers such as Tony Blair. Would she be willing to engage in that dialogue on safeguards in higher education around no-platforming, so that free speech can be protected?

[Dame Nia Griffith]

Free speech is absolutely a cornerstone of British values, but I remind the hon. Member that harassment is not free speech. They are two different things. The Bill concerns employer liability for workplace harassment, which is a serious issue, not to be underplayed. As with all cases of harassment under the Equality Act 2010, courts and tribunals will continue to be required to balance rights on the facts of a particular case, including the right to freedom of expression. Harassment is a serious matter that involves being subjected to unwanted conduct of various types that, as set out in the Equality Act,

“has the purpose or effect of violating”

the employee’s

“dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment”

for the employee. Those who seek to harass people at work will not be tolerated.

The hon. Member raised a number of potential scenarios relating to potentially offensive or upsetting speech. It is important to note that in employment tribunal claims for harassment, if certain conduct has a humiliating or degrading effect on the recipient but that was not its intended purpose, the tribunal must consider whether it was reasonable for the conduct to have had that effect. It is not a purely subjective test based on the view of the recipient. The reasonableness and the facts of the individual situation must be considered. On that note, I ask the Committee to accept the clauses unamended.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill.

Clause 16

Harassment by third parties

--- Later in debate ---

[Sarah Gibson]

We are happy not to press either amendment 163 or new clause 41, but I ask the Minister to meet us before Report so that we can introduce some, if not all, of the measures in them, and particularly those in amendment 163. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Dame Nia Griffith]

Clause 18 will strengthen the protections for whistleblowers by making it explicit that sexual harassment can be the basis for a protected whistleblowing disclosure. It will do so by amending part 4A of the Employment Rights Act 1996, adding sexual harassment to the list of relevant failures about which a worker can blow the whistle.

For context, to qualify for whistleblowing protection, a worker needs to have a reasonable belief that their disclosure tends to show one of the relevant failures and that the disclosure is in the public interest. A worker who blows the whistle by making a protected disclosure has the right not to suffer a detriment or, if they are an employee, not to be unfairly dismissed.

This measure will provide welcome clarity that sexual harassment can form the subject of a qualifying disclosure. This is because, as a result of the measure, a worker will not need to identify an existing legal obligation, criminal offence or breach of health and safety in order to make a qualifying disclosure about sexual harassment.

We anticipate that the measure will have wider benefits, including enabling more workers to use whistleblowing routes to speak up about sexual harassment, and sending a clear signal to employers that workers who make disclosures must be treated fairly. Workers will have legal recourse if their employer subjects them to detriment for speaking up.

This is one of the steps that we are taking to tackle sexual harassment at work. According to data from the Office for National Statistics, more than a quarter of those who have experienced sexual harassment in England and Wales said they had experienced it at their place of work. That must change. I commend the clause to the Committee.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Clause 19

Right not to be unfairly dismissed: removal of qualifying period, etc

Question proposed, That the clause stand part of the Bill.

Employment Rights Bill (Eleventh sitting)

Nia Griffith Excerpts

Committee stage
Thursday 12th December 2024 Public Bill Committees

[The Chair]

With this it will be convenient to discuss clause 21 stand part.

[The Minister for Equalities (Dame Nia Griffith)]

Clause 20 amends an existing power in section 49D of the Employment Rights Act 1996, which allows the Secretary of State to make regulations

“about redundancy during, or after, a protected period of pregnancy.”

Regulations made under that power took effect in April, bolstering the protections against redundancy for pregnant women. However, redundancy is just one of five reasons for which an employee can be fairly dismissed. The changes delivered by clause 20 are required so that regulations can be made in regard to dismissal more broadly beyond redundancy, both during and after pregnancy.

The existing provisions for redundancy allow regulations to set out three things. The first is how the protected period of pregnancy is to be calculated. The regulations can provide that the protected period begins after a pregnancy has ended, which means that protection can be extended to a woman who has miscarried but has not yet told her employer that she is pregnant. The second is that employers must offer alternative employment to pregnant women at risk of redundancy. The last is the consequences of a failure to comply with any protections, including stipulating that this will result in the dismissal being treated as unfair. Those provisions for redundancy will all be extended, and therefore made available for dismissals for reasons other than redundancy, through this clause. This approach is necessary to then deliver enhanced dismissal protections in the regulations for pregnant women.

A 2016 Equality and Human Rights Commission survey found that 1% of mothers were dismissed following their pregnancy each year. Analysis by the Department for Business and Trade estimates that that equates to around 4,100 mothers—that is how many women could benefit from the new dismissal protections annually. Using secondary legislation to set out the policy detail is a standard approach in this area of employment law and supports working with stakeholders to further shape the policy before confirming the final approach in the regulations.

Clause 21 amends existing powers that allow the Secretary of State to make regulations concerning dismissal during several kinds of family-related statutory leave. The amended powers will continue to allow for regulation of dismissal during the period when an employee is away from work on maternity leave, adoption leave, shared parental leave, neonatal care leave or bereaved partners paternity leave. The amended powers will also apply to a period after the employee has returned from one of those types of leave.

Additionally, clause 21(5)(b) clarifies that parents looking to take bereaved partners paternity leave who have adopted from overseas or had their children via a surrogacy arrangement can be included in regulations creating protections against redundancy, as well as the new protections against dismissal for other reasons. It also makes it clear that the cohort of parents taking bereaved partners paternity leave can be included in the regulations allowing access to keeping-in-touch days, which allow an employee on statutory leave to be able to do some work for their employer without that leave coming to an end.

Our primary focus with the enhanced dismissal protections is supporting pregnant women and new mothers during and after maternity leave. However, as is the case with clause 20, we want to consult and work closely with stakeholders on whether new parents more generally should be covered by the enhanced dismissal protections. The final policy design will then be reflected in the regulations, as is typical in this area of employment law.

Before I commend the clause to the Committee, I put on record my entry in the Register of Members’ Financial Interests, including my membership of USDAW and the National Education Union.

[Greg Smith]

I think this is one of the least contentious parts of the Bill, and we do not seek to oppose in any way the important protections for pregnant women and new mothers. I note that what the Government are really doing with these clauses is building on the regulations that, as the Minister rightly said, came into force in April off the back of legislation brought forward by the hon. Member for Barnsley North (Dan Jarvis) and my noble Friend Baroness Bertin in the other place.

Again, we have the challenge of consultation after legislation. It is important that the Government move quickly to ensure that the protections for pregnant women and new mothers are not left to drag out as part of that consultation. Although consultation is important, the objective that the Government are trying to meet is quite clear. The desire to build on existing legislation should make it less controversial, and it should make getting it right quickly less of an open-ended question. That will enable pregnant women and people who are trying to conceive and start a family—or to have a second, third or fourth child, or whatever it may be—to plan with the confidence that those protections will be in place. I am not in any way speaking in opposition to this measure; I am just urging the Government not to let the consultation drag on.

[Alison Hume (Scarborough and Whitby) (Lab)]

It is an honour to serve under your chairship again, Ms Vaz. I draw the Committee’s attention to my declaration of interests and my membership of Unison and the Writers’ Guild of Great Britain. I associate myself with the shadow Minister’s comments about the positive results that the legislation will have when it comes into force.

I will speak briefly about the importance of clauses 20 and 21, which will afford considerable extra protections to women who are pushed out of their jobs from the point at which they get pregnant, while they are pregnant, while they are taking maternity leave or just after they return. We heard at our evidence sessions that under the coalition Government, a report was done by the Equality and Human Rights Commission, which found that it was possible that 54,000 women a year lose their jobs in this way. That report was published in 2016. We also heard the Fawcett Society call for a new report because the data is so out of date. I refer to the comments made by my hon. Friend the Member for Birmingham Northfield and the shadow Minister about the lack of data.

Nobody can argue with the fact that so many women suffer maternity discrimination, however. From January to September 2023, 832 complaints were brought to employment tribunal for detriment or unfair dismissal as a result of pregnancy, and we know that that is the tip of the iceberg. Back in 2022, there was a high-profile example when Morrisons was told to pay a mother £60,000 for discriminating against her when she returned from maternity leave. Donna Patterson, who returned to work after having her second child, was asked to fulfil the responsibilities of a full-time job, despite only being contracted to work part-time hours.

Ms Patterson was supported by the charity Pregnant Then Screwed, the founder of which, Joeli Brearley, told us that

“the dial has not moved very much”––[Official Report, Employment Rights Public Bill Committee, 26 November 2024; c. 84, Q79.]

in 10 years, so this Bill will mark a significant step forward. When women suffer maternity discrimination, not only does it take them a long time to recover personally, but it damages their careers and their mental health, and it is a big contributor to the gender pay gap. These clauses will tackle maternity and pregnancy discrimination, and it is necessary to do that to avoid having more women leave the workplace.

[Dame Nia Griffith]

Let me pick up on the point about the consultation. We very much recognise the urgency, so the consultation is expected to take place in 2025—this coming year—after which we will introduce secondary legislation. It has been noted that clauses 20 and 21 build on previous measures that received cross-party support, and I commend them to the Committee.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Clause 21 ordered to stand part of the Bill.

Clause 22

Dismissal for failing to agree to variation of contract, etc

[Chris Law (Dundee Central) (SNP)]

I beg to move amendment 160, in clause 22, page 33, leave out lines 11 to 2.

Employment Rights Bill (Thirteenth sitting)

Nia Griffith Excerpts

Committee stage
Tuesday 17th December 2024 Public Bill Committees

[Steve Darling]

I echo the comments from my hon. Friend the Member for Chippenham about the impact of endometriosis on younger women’s lives. It can be extremely incapacitating. A constituent of mine in Torbay shared how her daughter had to give up work because of the impact and the length of time that it was taking her to go through the NHS system to get the treatment that she deserved. Action to resolve that and get her in the right place was months and months away.

To me, the Bill needs a couple of touch points that test the employer and challenge them to reflect on certain areas of their workforce. That will result in a culture change among employers, so that they reflect on these matters and see the broader picture. It is extremely important to drive that culture change by adding this amendment, because throughout the United Kingdom, including in my Torbay constituency, there are significant issues related to finding enough people to fill workplaces. If we have the appropriate culture through this proposal and other changes in the Bill, we can make sure that the pool of people who can step up and work and contribute to our economy is enhanced.

[The Minister for Equalities (Dame Nia Griffith)]

Amendment 112 would add menstrual problems and menstrual disorders to matters related to gender equality in clause 26. Prioritising women’s health is a positive step that the Government are taking, and the hon. Member for Chippenham is absolutely right to highlight the terrible impact that many different conditions related to menstruation can have on whether a women can perform to the best of her ability. Physical symptoms can be further compounded by the taboo that often surrounds conversations about women’s reproductive health, and I thank her for bringing that to the Committee’s attention.

Clause 26 does not provide an exhaustive list of matters related to gender equality, as the hon. Member for Mid Buckinghamshire referenced. As the hon. Member for Torbay said, this is about culture change in a place of employment. In creating equality action plans, we are reflecting the fact that many actions will be beneficial for people in lots of different circumstances. For example, the improved provision of flexible working can be valuable for an employee balancing childcare, as well as someone managing a health condition.

In the same way, ensuring that employers support staff going through the menopause will necessitate them taking steps that are positive for supporting women’s health in the workplace more broadly. For example, menopause best practice includes greater discussion around women’s health and awareness of potential workplace adjustments—things that have a much wider potential benefit. I therefore ask the hon. Member for Chippenham to withdraw the amendment.

[Sarah Gibson]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Dame Nia Griffith]

If I may, Mr Mundell, I will draw attention to my registered interests, including my membership of the Union of Shop, Distributive and Allied Workers and the National Education Union.

Amendment 162 would add caring to the matters related to gender equality listed in clause 26. The hon. Member for Torbay is absolutely right to highlight the impact of caring responsibilities on women in the workplace, and we recognise that carers might need extra protection and support. I reassure him that many people with caring responsibilities are likely already to be afforded protections under the Equality Act 2010, through the provisions relating to age and disability discrimination.

The Equality Act protects people from direct discrimination by association. That means that individuals with caring responsibilities for someone who is, for example, elderly or disabled are likely to have protection from unlawful discrimination because of their association with someone with a protected characteristic. The Government frequently receive requests for the creation of new protected characteristics. Unfortunately, merely creating new characteristics within the Act will not necessarily lead to a change in the behaviour of service providers and employers. We can see that from the number of court cases that continue to be brought under the existing characteristics.

Clause 26 does not provide an exhaustive list of matters related to gender equality. Instead, we are reflecting the fact that many actions will be beneficial for people in lots of different circumstances. For example, improved provision of flexible working can be valuable to someone who is managing a health condition as well as to an employee who is balancing care. Equality action plans will increase awareness of the need for a wide range of potential workplace adjustments for all who would benefit from them, delivering a much wider potential impact. I therefore ask the hon. Member to withdraw the amendment.

[Steve Darling]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Dame Nia Griffith]

The clause is the first step towards introducing equality action plans, and it provides the power to do so in subsequent regulations. Women are a crucial part of securing economic growth and improving productivity, but the national gender pay gap remains at 13.1% and eight in 10 menopausal women say that their workplace has no basic support in place. This lack of support adds up to a significant loss of talent and skills. Menopause affects 51% of the population, with one external estimate showing that the UK is losing about 14 million work days every year because of menopause symptoms.

Large employers have been obliged to publish gender pay gap data since 2017, with action plans being encouraged, but voluntary. Analysis in 2019 found that only around half of employers that reported data went on to voluntarily produce a plan saying how they would act to improve the figures. That demonstrates that only making it mandatory will push employers to act. The best employers already recognise that providing women with the conditions to thrive is good for their employees and good for business. In taking this step towards introducing mandatory action plans, we are making sure that all large employers in scope of this clause follow their lead.

We are using a delegated power, mirroring the approach taken for gender pay gap reporting. Just as with that requirement, we want to give employers as much detail as possible in legislation—more than would commonly be in a Bill. The use of regulations allows us to do that while maintaining flexibility. When drafting this power, we reflected on what we have learned from gender pay gap reporting and from the hundreds of employers we have engaged with as a result. Most organisations think about equality in the round. They have one diversity and inclusion strategy, recognising what is borne out by the evidence: the most effective employer actions have benefits for more than one group or identity. That is why this clause proposes that employers produce one plan that covers both the gender pay gap and the menopause, reflecting the way they already work, reducing the burden of duplication and ensuring that they can get on with putting the plan into action. I commend clause 26 to the Committee.

[Greg Smith]

We covered many of the issues relating to this clause when we discussed amendments 112 and 162. I am grateful to the Minister for citing the 2017 changes, which were brought about by the previous Conservative Government. It is morally right to completely close the gender pay gap. That will undoubtedly take some time, but every step taken to close it completely is a welcome one. It is important to make sure that employers are taking proper and serious account of the issue and action on ensuring gender equality in the workplace.

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[Alison Hume (Scarborough and Whitby) (Lab)]

It is a pleasure to serve under your chairmanship once again, Mr Mundell. I draw the Committee’s attention to my declaration of interests and my membership of Unison and the Writers’ Guild of Great Britain.

I associate myself with the contribution made by my hon. Friend the Member for Penistone and Stocksbridge on the gender pay gap. I particularly welcome the focus on menopause support, which will be provided by the equality action plans proposed in clause 26. The TUC has reported that research from Bupa estimated that 1 million women have been forced out of their jobs because of discrimination and a lack of support for them while experiencing the perimenopause or menopause. I have lost count of the many talented women whom I count as friends and who have left jobs and careers that they loved, simply because they were not given support by their employers to manage their symptoms while at work. I am pleased that we have moved on from an era in which women going through the menopause had to suffer in silence, but we have a long way to go. That is why the mandatory equality plans are so necessary. They will help employers to provide the best workplace experiences.

USDAW research involving women members who are going through the menopause has found that one in five women take time off because of menopause-related symptoms. Given that women between the ages of 45 and 54 make up 11% of all women in employment— 3.5 million women—it is vital that employers consider the needs and experiences of women during this period and ensure that support is in place, that women can keep working and earning, and that their talents are not lost to the workforce.

[Dame Nia Griffith]

I thank my hon. Friends the Members for Penistone and Stocksbridge and for Scarborough and Whitby for their powerful contributions.

I cannot stress enough to the hon. Member for Mid Buckinghamshire how important our continuing consultation will be. We are keen to engage with stakeholders to ensure that we get this right and lay the appropriate regulations before the House in the appropriate way. On that note, I commend the clause to the Committee.

Question put and agreed to.

Clause 26 accordingly ordered to stand part of the Bill.

Clause 27

Provision of information relating to outsourced workers

Question proposed, That the clause stand part of the Bill.

[Dame Nia Griffith]

This clause is the first step towards requiring employers that already report gender pay gap data also to provide information about where they receive outsourced support from.

A 2019 YouGov survey found that seven out of 10 employer respondents had used third parties to provide key services. We know that the success of a business is down to everyone who contributes, including those who do some of the most demanding jobs but whose pay may be overlooked because they are employed by outsourced service organisations.

By getting large employers to disclose who they have outsourcing relationships with, we are building on what we have learned from gender pay gap reporting. Public accountability is an effective motivator for organisations. Instead of trying to get organisations to share employee data, which risks data relating to outsourced workers getting lost in the wider data, our approach will put those outsourcing relationships front and centre. That will act as a prompt for employers, and so achieve our original aim: getting employers to work throughout their networks and be invested in the pay decisions of those from whom they receive outsourced services.

We are taking a delegated power, mirroring the approach taken for gender pay gap reporting. That will enable us to provide as much detail as possible to employers in legislation, including the definitions and parameters of what will need to be reported. We recognise that outsourcing is not clearly defined and that we will need to work with employers to ensure that the measure works. The use of regulations will allow us to engage on an ongoing basis with experts in the area, provide as much clarity as possible in legislation and still maintain flexibility.

This measure is a step towards valuing and supporting some of the lowest-paid workers; it is a step towards businesses working together, rather than engaging in a race to the bottom; and it is a step in the right direction. I therefore commend the clause to the Committee.

[Greg Smith]

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

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

[Sarah Gibson]

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

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

[Dame Nia Griffith]

I think I had better start by putting on the record that I am not intending to stage some sort of leadership coup—[Hon. Members: “Shame!”]

[The Chair]

That usually means that you are.

[Dame Nia Griffith]

Well, I shall leave Members to interpret my words in Hansard as they choose. On that note, may I just make sure that I have not inadvertently made a mistake? I was referring to the 2019 YouGov survey, and I may have inadvertently said 2020, so I would like to just correct that on the record.

Turning now to the clause itself, I thank my hon. Friend the Member for Birmingham Northfield for making some powerful points, as did the hon. Member for Chippenham. On the burden and the detail required, I say to the hon. Member for Mid Buckinghamshire that we are absolutely committed to ongoing stakeholder engagement in this matter.

Question put and agreed to.

Clause 27 accordingly ordered to stand part of the Bill.

Clause 28

Pay and conditions of school support staff in England

Question proposed, That the clause stand part of the Bill.