Tuesday 3rd June 2025
(3 days, 20 hours ago)
Lords ChamberEmployment Rights Bill 2024-26 View all Employment Rights Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 81-VI(a) Amendments for Committee (Supplementary to the Sixth Marshalled List) - (3 Jun 2025)
Lord Hendy
“(2A) In section 189 (complaint and protective award), after subsection (2) insert—“(2A) Any such declaration may be enforced in the High Court as if it were a declaration of the High Court and, for the avoidance of doubt, such enforcement may include—(a) an Order to comply with the declaration of the employment tribunal,(b) a Declaration that any dismissal which should have been but was not subject to compliance with section 188 or section 188A is void and of no effect, and(c) in relation to any failure to comply with an Order of the High Court, proceedings for contempt of Court.””Member’s explanatory statement
This amendment is intended to provide a remedy for a breach of s.188 or 188A given that the doubling of the protective award appears may be unlikely to deter employers such as P&O Ferries where the value of the protective award can be calculated to be outweighed by the benefit of reduced wages over time.
Lord Hendy (Lab)
My Lords, Amendment 143 is intended to provide a tougher remedy for breach of the obligation, which is a very modest one, to consult in cases of collective redundancy. At present, the remedy is an award of loss of earnings capped at a maximum of 90 days, which the Bill proposes to increase to 180 days. My amendment is not concerned with that. It proposes judicial intervention to prevent the breach, or at least to restore the position prior to the breach. So, where a declaration has been made by an employment tribunal, the union should be entitled to go to the High Court to obtain an order to enforce that declaration. The employment tribunal does not itself have the jurisdiction to make such an order; indeed, it does not have the power to enforce its own orders. That is why it is necessary for workers to issue further proceedings in the county court if their employer fails to pay a tribunal award.
The amendment makes it clear that any dismissal which should have been subject to Section 188 of the 1992 Act but was not will be void and of no effect, so the obligation to continue to pay wages and to honour the other incidents of employment will continue until the employer has fulfilled its legal duty. I should add, in case any of your Lordships doubt it, that the High Court does indeed have the power to restrain dismissal and declare a purported dismissal void and of no effect. The court has often done so where the dismissal was unlawful because, in breach of contract, the power is still more apposite where the unlawfulness is breach of a statutory duty.
Finally, the amendment puts beyond doubt that the normal consequences of non-compliance with an order of the High Court will apply: that the company and any officer personally frustrating the order may be subject to proceedings for contempt of court, including fine, sequestration and, in the most egregious cases, imprisonment.
The rationale for my amendment is obvious. We are talking about a situation in which an employer has broken or proposes to break the law by throwing a significant number of people out of work without properly consulting on measures which might have avoided that situation. A very limited financial penalty is plainly not enough to dissuade lawbreakers, as I think the noble Lord, Lord Hunt, recognised. What is required is not just a more dissuasive remedy but one which prevents the unlawful situation, or at least restores the situation to lawfulness, so far as it can be restored. Only the High Court has the power to do that.
There is another reason: the need to comply with international law which the UK has voluntarily ratified. Conventions 87 and 98 of the International Labour Organization will need more detailed consideration in later amendments, but for current purposes it is enough to note that, together, they require member states—not just ratifying states—to respect and protect freedom of association and the right to bargain collectively. Compliance with international law is the eighth of Lord Bingham’s principles of the rule of law, and the importance of compliance with international law was emphasised by the Attorney-General in a speech to the Royal United Services Institute last week. It matters not whether the provision in question relates to trade, the environment, security, labour or any other matter, and compliance is not restricted to the black letter of the treaty but also required of the decisions of the bodies appointed by the treaty to supervise compliance with it.
One such constitutional body of the ILO is the tripartite Committee on Freedom of Association, which consists of representatives of government, employers and workers. On 8 November 2023, it published its decision on a complaint brought against the United Kingdom by Nautilus International, the RMT, the TUC and a number of international trade union federations. This arose out of the P&O Ferries scandal mentioned earlier this evening. At 7 am on St Patrick’s Day 2022, the employer summarily dismissed 786 seafarers, with security guards escorting them from the ships past waiting coachloads of agency staff from third-world, cheap-labour countries recruited to replace them.
The report says that the committee notes the complainants’ indication that
“while breaches of the UK law entitle claims to be made in an employment tribunal, such claims are subject to statutorily fixed (and very modest) maxima; for this reason, the company was able to quantify with precision what the cost of the dismissals would be and to assess how long it would be before that cost could be recouped from future profits generated by the poverty wages and diminished terms and conditions of the new crews. The complainants thus allege that the dismissal of 786 seafarers to replace them with non-unionized agency workers constitutes an act of anti-union discrimination. The complainants further allege that the existing legislation is insufficient to deter anti-union discrimination as in practice, employers can, on condition that they pay the compensation prescribed by the law for cases of unfair dismissals, dismiss any worker for being a trade union member with better terms and conditions under a collective agreement. The Committee recalls in this respect that protection against acts of anti-union discrimination would appear to be inadequate if an employer can resort to subcontracting as a means of evading in practice the rights of freedom of association and collective bargaining … The Committee considers that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities … The Committee recalls that the Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress … Furthermore, the compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future … The Committee therefore requests the Government to ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress”.
Of course, there the committee considered that the collective dismissals were in order to avoid long-standing collective agreements which provided for notice of dismissal and consultation over proposed redundancies, which it regarded as anti-union discrimination. That situation will not occur in every collective redundancy—of course that is the case—but it will be true in many, though not all, collective redundancy situations. I should add that what we are looking at here are really bad employers. The remedy that I am proposing will not be used against good employers that do their best to deal with the situation.
The tribunal remedies which the committee considered very modest were not just for failure to consult over collective dismissal but included compensation for unfair dismissal. Here we are considering the even more modest, statutorily capped compensation for failure to consult. As the committee held, what is needed are
“sufficiently dissuasive sanctions and prompt means of redress, emphasising reinstatement as an effective means of redress”.
Only an injunction will achieve that outcome. That would have stopped P&O Ferries in its tracks.
I say to my noble friend the Minister that I can see no reason not to add this remedy to those available to restrain such unlawful activity. While the increase in maximum award, from 90 to 180 days—as the tribunal has to assess compensation as what is just and equitable up to that cap—is not sufficient in itself, since injunctions are available for breach of contract, why are they not for breach of statute as well? I beg to move.
Lord Davies of Brixton (Lab)
I thank my noble friend for his powerful and clear speech; he has said it all. I just want to add that this issue has arisen from the P&O scandal that took place three years ago. The maritime unions are particularly concerned about this, and I hope that my noble friend the Minister will be able to provide some comfort for the arguments that have been presented. The issue of pre-emptive injunctive relief for seafarers and other workers is a crucial issue and it is possible that we will need to return to it on Report.
Lord Sharpe of Epsom (Con)
My Lords, I appreciate the intent behind Amendment 143. After all, we are all familiar with the high-profile cases, such as P&O Ferries, to which the noble Lord, Lord Hendy, referred in his introduction.
I cannot pretend that I was au fait with the case details that the noble Lord explained, but we have some concerns about the practical and legal consequences of what is being proposed here. It seems to us that the amendment would allow employment tribunals to declare dismissals void and as having no effect; therefore, in effect, reinstating employees regardless of circumstances.
That is a major departure from the current legal framework, where the remedy for a breach is compensation, not nullification. That obviously raises serious questions. What happens if a dismissal is declared void months later? Is the employee reinstated, and are they entitled to back pay? What if the role no longer exists or has been filled? For many businesses and many workers, that would create uncertainty and not protection.
There is also the issue of enforcement. Giving tribunal decisions the force of the High Court, and allowing contempt proceedings for breach, risks confusing two fundamentally different judicial systems. Tribunals are meant to be accessible and the High Court is not.
I also question whether this change would meaningfully deter bad-faith employers. Those who already factor in the cost of breaking the law may simply budget for this risk too. Meanwhile, small and medium-sized employers acting in good faith could face disproportionate legal exposure for administrative or technical errors. I look forward to hearing the Minister’s response.
Lord in Waiting/Government Whip (Lord Leong) (Lab)
My Lords, I thank the noble Lord, Lord Hendy, for tabling Amendment 143.
The Government agree that employers should not be able to deliberately ignore their obligations, and it should never be financially beneficial to do so. However, this amendment would offer a disproportionate response to address the issue. First, employment tribunals have jurisdiction over the majority of employment matters, including the enforcement of protective awards in cases of collective redundancy. It would not be appropriate to amend this jurisdiction solely for collective redundancy cases and it would lead to a disparity within the legal structure governing employment rights and their enforcement.
Furthermore, Section 15 of the Employment Tribunals Act 1996 already offers routes for affected individuals to pursue unpaid employment tribunal awards via the county courts, for England and Wales, and the sheriff courts, for Scotland. Finally, the amendment may have the unintended consequence of an increase in scenarios where employers are forced to become insolvent in response to both paying a protective award and requiring the reinstatement of affected employees.
Responsible employers across the country already go further than the current obligations to consult collectively. They agree with the Government that collective consultation with their workforce is a valuable tool in finding solutions to some of the challenging situations that employers find themselves in. Clause 29 closes a loophole in our collective redundancy legislation which meant that P&O Ferries could not be prosecuted when it dismissed people without warning, including because they worked abroad on foreign-registered ships. This goes some way to addressing the ILO’s concerns about the lack of an effective remedy. Our measure to confer powers on Ministers to create a mandatory seafarers’ charter will also help to create a level playing field in the sector and prevent such events happening again. A couple of amendments in subsequent groups will address that issue.
Doubling the protected period means that employees who were not afforded any consultation when being made redundant will now be awarded up to 180 days’ pay. Employment tribunals can award a further uplift of up to 25% where an employer unreasonably fails to comply with the code of practice on dismissal and re-engagement. Taken together, these measures increase the potential statutory payout per person far beyond that which P&O Ferries offered to dismissed employees. This clause will provide a balanced approach that gives certainty to employers, employees and tribunals, and will provide an increased deterrence against deliberate breaches of the collective redundancy requirements, without disproportionately penalising employers which attempt to comply with their obligations.
I hope that this provides some assurance to my noble friend, and I therefore ask that his amendment be withdrawn.
Lord Hendy (Lab)
My Lords, I am grateful to my noble friend Lord Davies for his support. I am also grateful to the noble Lord, Lord Sharpe, for his contribution. In response to him, I note that the proposal is not that employment tribunals should make a declaration that a dismissal was void and of no effect. Instead, the idea is that the High Court will make a declaration based on another declaration already made by the employment tribunal that the employer has breached the law by failing to consult—or by failing to consult properly.
The remedy I am proposing, since it is going to be in the hands of a High Court judge, will not be granted for technical or administrative errors; it will be for only the most egregious breaches.
On the point that an injunction might be granted months later, that cannot be so because delay will always defeat an injunction. Injunctions are only ever granted if the application is brought in a timely fashion, and whatever the court orders can be fulfilled.
I am grateful for the Minister’s very full response. I am not sure that the measure I propose is disproportionate —it is intended only for the most egregious breaches of the duty to consult—or that it distorts the remedies available for employment matters. As my noble friend pointed out, employment tribunal awards already have to be enforced in the civil courts and not by tribunals themselves. I am not sure about the unintended consequences. I know everything he says about The Seafarers’ Charter; my concern is with those on land. I have heard everything he says with sympathy, and on that basis, I beg leave to withdraw my amendment.
Lord Davies of Brixton
Member's explanatory statement
This amendment applies the provisions for collective redundancy notices for ships’ crew to ships providing a service entering a harbour in Great Britain on at least 52 occasions in the relevant period.
Lord Davies of Brixton (Lab)
My Lords, I ask noble Lords to cast their minds back three years to 24 March 2022, when the P&O Ferries chief executive officer Peter Hebblethwaite made it clear to the House of Commons Transport Select Committee that he knew that his decision to sack 786 British seafarers broke the law. He went on to explain that he knew there would be penalties to pay, but these were simply, in his view, a cost of business. He even had the audacity to say that he would make the same decision again.
My noble friend Lord Hendy has already dealt with this, but it is a crucial issue which has raised important questions about how industrial relations operate in this country. The gross premeditation of the company’s action was evident to the whole country, as private security guards boarded ferries to physically force the crew out of work, to be replaced by cheaper agency crew recruited internationally and oblivious to the circumstances.
I have been relatively modest in putting all my proposed amendments in a single group, given the extent of the degrouping of amendments that has taken place. There are three issues being dealt with here: first, the need to widen the scope of the promised seafarer’s charter, mentioned by my noble friend the Minister; secondly, the need to reduce the threshold for the application of The Seafarers’ Charter in terms of visits by ships to UK ports; and thirdly, to ensure the necessary monitoring of the effectiveness of the legislation.
On the need to increase flexibility in The Seafarers’ Charter, the key amendment is 200AD; the rest are consequential. These amendments provide the flexibility to strengthen the mandatory seafarers’ charter, in addition to standards on pay and roster patterns. They are constructive in spirit and look to explore the Government’s position on mandatory employment standards for seafarers at work today and in the future.
Back in 2023, on the first anniversary of the scandal, Labour’s shadow Employment and shadow Transport Ministers committed the party to a mandatory seafarers’ charter as a direct response to this appalling episode. In a joint article in the Independent they wrote:
“The P&O scandal was … supposed to draw a line in the sand for seafarers’ rights. But for too many low-cost operators, their business model is based on exploitation. That is why we will introduce a strong, legally-binding Seafarers Charter that smashes the business model dependent on the cruel manipulation of vulnerable workers from around the world. This will mandate an agreement between unions, government and employers on minimum protections for pay, roster patterns, crewing levels, pensions, taxation and training”.
The unions, together with many MPs and Peers, continue to support that explicit aim for the charter set out by the Labour Party.
I also understand that the RMT was given ministerial assurances only last December that there would be flexibility to add employment conditions to the mandatory charter. Regrettably, DfT and DBT officials now tell us there will be no flexibility, citing difficulties around compliance with the UN Convention on the Law of the Sea. We are told that UNCLOS prevents the Government adding other employment conditions such as sick pay, holiday pay and pensions. This is hard to understand, and I would be grateful if my noble friend the Minister could explain. Even the voluntary seafarers’ welfare charter, introduced by the last Government in July 2023, includes sick pay and pension rights, as does the French Government’s legally binding seafarers’ charter, introduced on ferry routes to the UK in June 2024.
I beg the Minister to help us understand why national legislation on pay and hours of work for seafarers on international routes from UK ports is UNCLOS-compliant, but other areas of employment, including remuneration such as sick pay, holiday pay and pensions, are not compliant. If the Minister cannot do so in reply to this debate, a summary of the Government’s position should be circulated before Report. I ask the Minister to meet with the unions to explain why we have ended up in this situation. I reiterate that a public promise was made by the then shadow Secretary of State for Transport and the then shadow Minister for the Future of Work that the charter would cover not just pay and rosters but other issues, including sick pay, pensions and training.
Amendments 200AA, 200AB and 200AC deal with the threshold for application of the seafarers’ charter created in Schedule 5. We of course welcome the seafarers’ charter, but its effectiveness is set by the criteria which apply in terms of the rate at which the ships concerned visit UK ports. Clearly, the lower the figure for the number of visits required, the greater the proportion of seafarers who will have the necessary protection. In simple terms, the proposed amendments bring ships that call weekly in UK ports within scope, in contrast with the Bill, which requires more than twice-weekly visits.
I make no secret of my desire to see as many seafarers covered as possible, and not, in effect, limiting this to those who work on roll-on, roll-off ferries. Most ships that regularly work in UK waters are not that type of vessel. According to DfT statistics, over 160,000 seafarers are employed in the UK shipping industry and where possible, we must use the Bill and future legislation to equalise their employment rights with land-based workers.
The previous Government introduced a threshold of 120 calls per year in Section 3 of the Seafarers Wages Act. When that legislation was going through the Lords, the then Minister, the noble Baroness, Lady Vere, responded to an amendment from my noble friend Lord Tunnicliffe on this matter, stating that 52 calls per year
“would catch too many vessels that we did not intend to catch and would be overreach in terms of the current settlement with the international shipping community”.—[Official Report, 12/10/22; col. GC 102.]
Baroness Whitaker (Lab)
My Lords, I support all the amendments in this group and will speak to my Amendment 200ABA. Our seafarers are the engine of a vital part of our trading economy, but their conditions of work are often out of sight and out of mind. Among other problems, as set out by my noble friend Lord Davies of Brixton, the gender imbalance and isolation on most ships has resulted, sadly, in risks for women which need clear measures of protection.
Of the 23,700 United Kingdom seafarers counted in 2024, only 16% were female. These were mainly among ratings and uncertificated officers—that is, those with the least authority and power. I heard of a nasty case of rape on a cruise ship, where the victim, significantly, said that she had no help from the HR department because she was too shocked to report it immediately. She was advised that her only recourse was to leave the ship, because the perpetrator was needed on board—a not uncommon reaction. Some privately owned super- yachts require applicants for jobs to submit photographs and “be comfortable with nudity”, which gives a flavour of the work environment.
Research from the Seafarers International Research Centre at Cardiff University shows how fearful women seafarers on cargo ships are of sexual assault and how lonely they can feel in their workplace. We have now the seafarers’ charter, announced by the Government last December. This provides the vehicle for vastly improved standards for seafarers’ working conditions, but it needs to clarify that it will specify protection against sexual harassment and bullying—hence my amendment.
Our shipping force is declining, not least in the retention of women, and there are skills gaps. This has put pressure on workplace standards, resulting in seafarers in general having a higher rate of sickness and accidents than onshore workpeople. There are industry initiatives to encourage recruitment, but little thought on making workplaces safe, convenient and welcoming to women. We can attract more people into it if everyone feels safe.
Lord Hunt of Wirral (Con)
My Lords, I am very grateful to the noble Lord, Lord Davies of Brixton, for so clearly setting out the case for a range of amendments. As he made clear, the matters under discussion go to the heart of how we uphold standards for those who work at sea, an essential part of our economy and infrastructure. Of course, we are all well aware of the extent to which the events surrounding P&O Ferries in 2022 were a stark reminder of the vulnerabilities that are faced by seafarers operating in and around UK waters. I am very grateful to the noble Baroness, Lady Whitaker, for reminding us of some pretty stark situations that are faced by people who work in this environment.
I was very pleased and proud when the Conservative Government took clear and concrete steps to improve protections, most notably through the Seafarers Wages Act 2023, the introduction of the voluntary seafarers’ charter and a broader nine-point plan aimed at promoting fairer treatment and higher standards across the sector. These reforms represent a record of action that reflects the seriousness with which we take the obligations owed to maritime workers and our determination that what happened—that unacceptable practice that we all saw and were so concerned about—must never happen again.
Today’s amendments reflect continued concern for the welfare and rights of seafarers. They raise, though, a number of detailed questions about scope, enforcement and the role of harbour authorities. I am pleased to see the noble Lord, Lord Hendy of Richmond Hill, here to reply to this debate, because we want to hear from him how the Government see these provisions fitting alongside the reforms already undertaken. We await with bated breath his reply to this important debate.
The Minister of State, Department for Transport (Lord Hendy of Richmond Hill) (Lab)
My Lords, I will first speak to government Amendments 200B and 200C. These amendments relate to Clause 54, which amends the Merchant Shipping Act 1995 to provide powers to make regulations giving effect to international agreements relating to maritime employment. Amendment 200B provides that such regulations cannot be used to bring into force an international agreement, or an amendment to an international agreement which requires ratification, before the UK has ratified it. By implication, the effect of this amendment is that such regulations can be made ahead of ratification of the agreement or amendment. For the UK to ratify an international agreement, it is usual for any necessary implementing legislation to be passed or made in advance of ratification, so the amendment helps ensure that the UK can fulfil its international obligations. Amendment 200C is simply a consequential drafting amendment.
Amendments 143A and 143AA, tabled by my noble friend Lord Davies of Brixton, seek to amend the requirements of the collective redundancy notification provisions to apply to services calling at a port in Great Britain at least 52 times a year, rather than 120 times a year. We are, as my noble friend and the noble Lord, Lord Hunt of Wirral, related, yet again dealing with the appalling events surrounding the P&O dispute in March 2022. As with the Seafarers’ Wages Act, the frequency requirement of this measure was designed to ensure that it applied to those services with a close enough connection to the United Kingdom to justify it. Any broadening of the scope would require further consideration of the impact of bringing further vessels into it. I will come on to the proposed amendments to the scope of the Seafarers’ Wages Act, but we do not accept the proposal to amend the scope of those measures. We will apply a consistent approach to the proposed changes to the scope of the collective redundancy requirements, which has the same frequency requirement. Any change would require stakeholder engagement and full consideration of the impacts on industry. However, having listened carefully to my noble friend Lord Davies of Brixton, we will agree to meet the trade unions, as he suggests, where a number of the issues that he has raised tonight can be further discussed, including the requirement for a summary of the Government’s position before Report.
Amendments 200AA, 200AB and 200AC, also tabled by my noble friend Lord Davies of Brixton, seek to apply the measures under the Seafarers’ Wages Act 2023 as amended by this Bill to weekly services rather than those calling 120 times a year as drafted. The existing minimum frequency requirement for the new remuneration and safe working declarations is consistent with the requirements under the existing Seafarers’ Wages Act 2023, which was brought into force on 1 December 2024. It is important that this measure be limited to services with a close enough connection to the UK to justify intervention in their working practices; the current requirements in the Seafarers’ Wages Act and in the Act as amended in this Bill have been designed with this in mind. Extending the scope of this measure would require careful consideration of the international law implications of bringing into scope less frequent services to the UK, as well as the impacts on the market. With these considerations in mind, we think that the existing scope strikes the correct balance. It would also not be right to accept this amendment without undertaking a full public consultation, which cannot be done in the timescales required to make this change as part of the Bill.
Amendment 200AD and the consequential Amendments 200AE to 200AK would go beyond the existing powers in the Bill to make safe working and remuneration regulations. It would provide further powers to specify conditions relating to sick pay, holiday pay, pensions and other training, and to require harbour authorities to request the associated declarations from operators, following the approach taken by the Government in relation to the remuneration and safe working regulations.
Lord Davies of Brixton (Lab)
I thank my noble friend Lady Whitaker for her amendment. In introducing the group, I should have said that I strongly support what is proposed there. I thank the noble Lord, Lord Hunt of Wirral, for his measured comments and I thank my noble friend the Minister for agreeing to a meeting— I am sure it will be useful. Maybe I am an optimist, but I also thank him for a slight glimmer of hope that there will be some movement in relation to the measures. Some might express doubt, but I am a natural optimist, and I hope that the meeting will be constructive and that we will also be able to address the issue of information, as well as the specifics of the charter. With that in mind, I beg leave to withdraw my amendment.
“(f) a higher education provider as defined by—(i) section 3(10) of the Higher Education Research Act 2017;(ii) section 91 of the Further and Higher Education Act 1992;(iii) section 56 of the Further and Higher Education (Scotland) Act 1992;(iv) Article 30 of the Education and Libraries (Northern Ireland) Order 1993.”
Baroness Warwick of Undercliffe (Lab)
My Lords, I rise to speak to Amendment 143B standing in my name, regarding outsourcing measures and their applicability to higher education providers across England, Wales, Scotland and Northern Ireland. Universities, like other employers, are preparing for the enactment of the Bill and will be adapting to the new legislative expectations around workers’ rights. I want to stress from the outset that universities wholeheartedly support the Bill’s objectives to ensure fair employment practices for workers. They do, however, have some technical concerns about Clause 30. I hope that, through Amendment 143B, my noble friend can provide helpful reassurances to the higher education sector—so this is a probing amendment.
As noble Lords will be aware, Clause 30 outlines expectations that contracting authorities must treat any employee transferred from a contracted body no less favourably in the terms offered than core employees. Many universities consider themselves to fall within the definition of “contracting authority”, meaning they may inadvertently be caught by this clause. This is of great concern to the higher education sector and, so far as I am aware, does not appear to have been scrutinised in the Bill so far.
The enormous financial challenges facing universities are well documented, and I know are of grave concern to many Members of this House. The potential imposition of further costs for universities from Clause 30 should therefore be of concern. For the many universities that constitute as contracting authorities, there are likely to be significant cost implications, as well as increased difficulty in finding contractors as a result of this clause. Crucially, unlike with public bodies, these additional costs for universities will not be met by the Government.
In addition to the financial implications, there is also the potential for policy divergence across the UK. Given that Scotland and Wales will be able to set their own regulations and code of practice, there may be inconsistency in arrangements, which could discourage agreements with suppliers. This would have a particular impact in the complex environment that the higher education sector operates in and could have a significant impact on its moves towards greater efficiency.
I would appreciate assurances from my noble friend on three questions. The first is whether, and in what circumstances, universities will be considered to be contracting authorities for the purposes of this legislation. Has my noble friend’s department or the Department for Education made an assessment of the likely impact of Clause 30 on the university sector? Secondly, are the outsourcing measures defined in Clause 30 applicable to pension provision? Where employees are transferred to another organisation, will their pension arrangements form part of the requirement that they be treated no less favourably? Thirdly, what consideration will be given to the impact on shared services where many providers, including across UK nations, will work with the same body as a key driver of efficiency efforts? If my noble friend is unable to provide assurances from the Dispatch Box today, a letter would be very warmly received.
I urge my noble friend and her department to engage closely with the higher education sector to ensure that the implementation of Clause 30 does not inadvertently undermine the financial sustainability and operational flexibility of our universities. While of course we have to remain steadfast in our commitment to fair employment practices, we must also ensure that the legislation takes full account of the distinct nature of the higher education sector and supports our universities to continue their vital work.
Lord Watson of Invergowrie (Lab)
My Lords, I am pleased to speak in support of my noble friend Lady Warwick on an issue that, as far as I am aware, has not appeared anywhere else but is of some importance. There is growing unease in the higher education sector about the potential implications of Clause 30. Universities UK has said it is frustrated that its letters to both officials and Ministers—they would be the same thing, I imagine—remain unanswered. UUK is probably being a bit polite in saying that it is frustrated; I suggest that it is unacceptable for a letter from any UK-wide organisation not to receive a response. If nothing else, I hope my noble friend will be able to give an assurance in her reply that she will ensure that Universities UK receives a considered response to its very legitimate concerns.
As my noble friend said, the higher education sector is concerned at the potential impact of measures proposed in Clause 30, which relate to outsourcing, on current arrangements within the sector and on the viability of steps that universities have taken or are planning to take in order to stabilise their financial position. Many universities consider themselves as falling within the definition of contracting authorities and may therefore be inadvertently caught in this clause of the legislation.
As originally introduced, the public sector outsourcing provisions applied to contracting authorities in England only. However, Ministers introduced an amendment in Committee in another place, and provisions now apply to contracting authorities in England, Scotland and Wales. Again as my noble friend said, the major point on which clarification is essential is whether and in what circumstances universities will be considered to be contracting authorities for the purposes of this legislation.
There is also the question of whether the planned separate outsourcing rules for different UK nations will or even might create complex and prohibitive arrangements for universities. As an example, if an institution is working across the UK nations—a good example would be the Open University—that could mean it is subject to two or more sets of outsourcing rules, potentially providing a conflicting legislative framework for its operational practice. I hope my noble friend will be able to clarify how the Government envisage such separate outsourcing rules will operate, and that in doing so she will provide reassurance to many in the higher education sector who, as my noble friend Lady Warwick said, are very supportive of the Bill in general but fear that universities could become victims of unintended consequences.
Lord Sharpe of Epsom (Con)
My Lords, I thank both noble Lords for their contributions, and I thank the noble Baroness, Lady Warwick of Undercliffe, for her introduction to her Amendment 143B. We think it is important to recognise the unique position of higher education providers when considering worker protection in public sector outsourcing. Because universities and similar institutions operate outside the traditional public sector framework, they possess a level of autonomy that sets them apart from government bodies, so applying the same regulatory requirements to these institutions clearly risks imposing unnecessary burdens that could affect their ability to focus on their core missions of education and research.
The amendment seems to us to thoughtfully acknowledge that difference by excluding higher education providers from the scope of these specific worker protection provisions. Such an approach would allow the focus of these protections to remain on core public sector organisations, where procurement processes are more standardised and closely tied to government accountability. At the same time, it would respect the operational independence of universities.
The fair treatment of workers remains an essential principle across all sectors, including higher education. Encouraging good employment practices within universities should continue through other means, but the amendment recognises the practical realities faced by these institutions. I look forward to hearing the Minister’s answer.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, I thank my noble friend Lady Warwick for her thoughtful contribution to this debate on Amendment 143B. We fully recognise the need not to impose disproportionate burdens on smaller procuring organisations such as universities. However, it is important that we consider fairness and equality of treatment for all workers providing key outsourced services to higher education providers—for example, cleaning and catering services—so that they receive fair and equitable employment conditions comparable to both those transferred from the public sector and those working for local authorities or departments that provide the same services. As a result, there would need to be compelling arguments to exempt higher education providers.
Secondly, it is essential that we first consult with key stakeholders and seek their views before deciding on the ultimate content of the reinstated code and the extent to which certain public authorities, including higher education providers, are required to follow its provisions. I can assure my noble friend Lady Warwick that we will carefully consider the particular issues relating to higher education providers and the difficulties they might experience during this process. However, our view is that to carve out higher education providers completely on the face of this Bill at this stage would not be right.
My noble friend highlighted the particular financial challenges currently being experienced by universities. We are committed to creating a secure future for our world-leading universities so that they can deliver for students, taxpayers, workers and the economy. The Office for Students will continue dedicating significant resources to ensuring the sector’s financial sustainability. The DfE has appointed Professor Edward Peck as the substantive chair of the OfS, where he will play a key role in strengthening this commitment while also expanding opportunities in higher education. We have also made the tough decision to increase tuition fee limits in line with inflation. As a result, the maximum fee for a standard full-time undergraduate course in the 2025-26 academic year will increase by 3.1% from £9,250 to £9,535.
Finally, I stress that the code is being designed to be flexible so that it does not impose undue burdens. There are a range of options available here that could be pursued, for example by specifying to which bodies the code should apply or applying the code only to higher-value contracts, which could exempt low-value procurement activities such as those often carried out by educational establishments that may have fewer procurement resources. These are the sorts of issues that the consultation will examine in detail.
I am very conscious that my noble friends Lady Warwick and Lord Watson asked very specific questions. Given the lateness of the hour and the very specific nature of them, I think it would be helpful if we could write and put that on the record to provide, I hope, the reassurance that the higher education sector seeks. It is for that reason that I ask my noble friend to withdraw her amendment.
Baroness Warwick of Undercliffe (Lab)
My Lords, I thank my noble friend for her reply and her attempt to reassure me and other Members of the Committee. I am grateful to my noble friend Lord Watson of Invergowrie for his staunch support for what I am trying to do here. I also thank the noble Lord, Lord Sharpe of Epsom, for his support; it was thoughtfully put, and I appreciate it.
I understand that the Minister is seeking to reassure me that she is very aware of the need to support the future of our universities. I do not think she really addressed, though, the issues around the impact on the different nations and the way in which that could affect the competitive advantage of the universities and the way in which they are seeking to increase efficiencies. I hope that, in writing to me, she will also undertake to meet the higher education sector once it has digested the detail of her response—I appreciate that my questions are technical. I hope she will undertake to do that because I think that would be enormously helpful and the most reassuring thing that she could do. Having said that, I beg leave to withdraw my amendment.
Baroness Fox of Buckley (Non-Afl)
My Lords, I am proposing that we remove Clause 31 from the Bill. That would remove the power of the Secretary of State to require largely private sector employers with more than 250 staff to develop and publish equality action plans showing what steps they are taking in relation to the gender pay gap and supporting employees going through the menopause. I thank the noble Baroness, Lady Noakes, who is, sadly, not in her place, and the noble Baroness, Lady Lawlor, who is in her place, for their support.
This is a probing amendment because I am not at all clear exactly why this clause is deemed necessary or indeed exactly what it entails. On the latter point, I note with some dismay that much of the detail is to be left to regulations in terms of the content of an action plan, the form of an action plan, what manner it will take and even its frequency. There is no detail at all on what sanctions employers face if they do not comply with the yet not detailed regulations. It is very difficult to scrutinise such vagaries, and I fear it reduces the issue to nothing more than a virtue-signalling clause to claim that something positive is being done—action is being taken. What action? We do not know.
What we do know is that here is another clause that requires workplaces to create more paperwork. I fear that the noble cause of women’s equality is being reduced to bureaucracy. I am a tad cynical because, since 2017, employers have been required to publish gender pay gap data annually. Now the demand is for actionable steps, yet what is the problem that we are trying to solve here?
The implication is that more needs to be done to crack down on gender discrimination in the workplace, but I am not convinced that that is such a major problem today as is inferred. Which actions would be deemed acceptable might help us understand what this clause is trying to do, but it is never considered. For example, we are frequently given a reference statistic that men earn roughly 20% more than women. But such figures are misleading, as this is an on-average figure reached through combining part-time and full-time earnings and takes no account of age or employment sector.
Are women continually disadvantaged in the workplace in 2025? When we compare how much women and men are paid for doing the same number of hours each week, there is virtually no pay gap. Of course, it would be illegal to pay men more than women. To illustrate the complexities of age, occupation and hours worked, it is worth noting that women in their 20s earn more than men of the same age—not just like-for-like but also on average. Even for all women under 40 working full-time, the pay gap is negligible. Indeed, it was acknowledged by the noble Baroness, Lady Morgan, when she was a Government Minister bringing in the pay gap notices. She said then:
“We’ve virtually eliminated the gap for full-time workers under 40 and the gap for the over-40s is shrinking too”.
If we only look at these issues in a technocratic way, do we not we miss nuances?
You could say that a decline in jobs traditionally associated with men earning more is actually a decline in old industries, because there has been a decline since 1979, when 40% of GDP was those old industries in which men earned more. But I am not sure that is something to celebrate. In other words, if you only view equality through the gender pay gap, you could actually end up arguing for the suppression of men’s pay or celebrating its decrease.
More to the point, what are employers being asked to action here, when many of the changes are broad social and cultural shifts, rather than sexist employment practices? It is true that, in the past, the labour market was rigidly segregated according to sex. As a consequence, men and women in their 50s and older today entered a labour market in which women were often not treated fairly. There was a cultural situation where women were more likely to take considerable time out of work to raise a family. This alone explains pay differentials that are still being felt today. But, as I say, as young women are earning more, these things are less of a problem. If we end up thinking that the reason the pay gap exists is older women and those differentials, I am not keen that we end up dumping older female employees so that, on paper, the gap is narrowed. I am not suggesting that anyone is saying that, but I am saying that we should not deal with this in a technical fashion.
I now arrive at something in which I have more expertise: older women. We arrive at the menopause part of the new section to be inserted by this clause. My concern here is that the Bill may end up amplifying the problems caused by the menopause for female employees, unintentionally presenting menopausal women as victims unable to cope. This could re-stigmatise the menopause—the opposite of what is intended. We should remember that the menopause is a natural life stage that all women go through and experience, and they all experience it differently in its duration and symptoms.
I worry that some of this has led to awareness raising that can mystify the menopause and turn it into an imagined horror story. I remember talking to a group of young students some years ago. I made a quip about being menopausal and they all said, “Oh no—how awful. That’s grim. How are you coping? Are you feeling all right?” They seemed terrified at the prospect. The menopause suddenly appeared to be an insurmountable series of anguishes that they would never cope with. Inevitably, they had been on a well-being course that had given them awareness training on the menopause. Do we want such attitudes becoming embedded in attitudes to female staff in the workplace, along with the association that, if you are menopausal, you are a delicate flower who needs to be worked around?
What exactly will employers be required to do to make reasonable adjustments to accommodate the specific needs of menopausal women? I have read activist demands that include the widespread availability of cooling fans; menopause champions and ambassadors in every workplace and department to encourage anti-stigma dialogue across the workforce; therapist sessions, including the availability of therapy dogs; and training courses for HR and management to look at everything from thermostat levels to developing menopause-sensitive language codes. To be honest, lots of these ideas stray dangerously close to condescending women. It might well be that this is not what the Government have in mind at all, but we have no idea if that is true because there are no details in the Bill—in fact, the details are all deferred until after the Bill is passed.
Do not get me wrong—I have been a vocal supporter of improving access to HRT on the NHS and, as a woman of a certain age, I am rather too familiar with some of the debilitating symptoms. But we should be wary of the calls, for example, for menopause leave and time off, with no questions asked, when using the word “menopause” would be enough to mean that—without any evidence and based on lived experience—employers are just meant to accept that there is a problem. There is a danger of green-lighting a mission creep not dissimilar to the crisis of so many not in work citing mental health problems—and I am really pleased to see that the Health Secretary, Wes Streeting, has raised this. That is a new social problem, and I do not want the menopause to become another one.
Again, possibly none of this is what the Government intend, yet we are using legislation to demand that employers must take steps to support employees going through the menopause. That seems completely inappropriate and unjustified, and it is bound to lead to mission creep if this legislation is used to that end, with this clause in it.
I will make two quick points as a PS. Can the Government please be careful with their language? Usually, it is the Government lecturing people like me on the Back Bench about watching our words and what language we use, but, whether we like it or not, the word “gender” has been corrupted by ideology. The pay gap that the Government seek to tackle is between the two sexes—a fear that biological women may be discriminated against as women. I am not being pedantic or referencing the culture wars here; I have been at a number of official corporate events over recent years where businesses were patted on the back for helping women break through the glass ceiling and for their work on the pay gap only for the examples of success given to be trans women—that is, men who identify as women—on corporate boards. I want to avoid that con happening.
Baroness Lawlor (Con)
My Lords, I am against Clause 31 standing part of the Bill. The 2010 Act protects against gender and other types of discrimination. It replaces earlier Acts, as your Lordships will know, including the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995.
The principles of equality are commonly supported. The aims are those on which people agree and under which employers are bound. Section 78 of the Equality Act stipulates that:
“Regulations may require employers to publish information relating to the pay of employees for the purpose of showing whether, by reference to factors of such description as is prescribed, there are differences in the pay of male and female employees”.
We have an Act that is commonly agreed on and obeyed, and known by those to whom it is addressed.
Clause 31 proposes to add a new Section 78A after Section 78, which stipulates:
“Regulations may require employers to … develop and publish … an ‘equality action plan’”
in respect of gender and equality,
“showing the steps that the employers are taking in relation to their employees with regard to prescribed matters related to gender equality, and … publish prescribed information relating to the plan”.
This will oblige more compliance, more bureaucracy and higher costs on employers—and it is unnecessary because we have the law.
We have just been listening to the discussion of the strategic defence review. We are going to have to spend a lot of money on defence. There are going to be lots of demands on the public purse. To oblige more compliance and bureaucracy on employers at a time when things are tight will not be a great help to the other demands on the public purse. It is not only about compliance and bureaucracy; much worse than that it leads to something beyond the principles of the Equality Act. It prompts institutions in practice to devise and interpret action plans that result in a 50:50 balance between men and women, and steps will be taken to achieve that level playing field and to discriminate positively.
Take the example of academic shortlisting, where, in order to achieve a 50:50 balance, things can be so ordained at the shortlisting stage in order to appoint women, and as they are so ordained, discrimination takes place against men and appointments are made not on merit but on gender. This results in action plans under which men are discriminated against. It is also unfair for women because, once positive discrimination comes into play, women too suffer. The women who are appointed are perceived to have been appointed not because they come first on merit, or in a fair competition, but on account of their gender.
I shall comment briefly on new Section 78A(4), which sets down that
“matters related to gender equality include (a) addressing the gender pay gap, (b) supporting employees going through the menopause”.
New Section 78A(4)(a) is too broad. Take the case of a male and female employee appointed at entry level to similar positions. They start with the same salary, but one may do far better than the other, be given far more responsibility and be promoted eventually to a higher role. How is the gender pay gap to be addressed, given that the talent, resourcefulness and ability of one employee naturally results in more responsibility and higher payment?
The noble Baroness, Lady Fox, has already mentioned new Section 78A(4)(b), which has no place in the workplace. It is discriminatory in its assumption that women need special help at certain times of their life. It also violates the professionalism of a good workplace in treating the personal as public, and it puts the employer into a discriminatory role in requiring special support for a select group of employees, rather than acting as a dispassionate employer who treats all employees well and fairly.
Lord Jackson of Peterborough (Con)
My Lords, I also support the proposition that Clause 31, on equality action plans, should not stand part of the Bill. We meet tonight with the knowledge that the OECD has downgraded the UK’s likely GDP for this year and next year. Less than an hour ago, the Minister said, I think I am right in saying, that it was not the intention of the Government to impose any onerous obligations on businesses as a result of the Bill. This is an example of exactly that.
I am very concerned about this clause, because it is very widely drawn and relies disproportionately on regulations that will be tabled, or laid before the House, once the Bill becomes an Act. I pay tribute to the very powerful intervention of the noble Baroness, Lady Fox of Buckley, and the thoughtful comments of my noble friend Lady Lawlor. Is it really the duty and responsibility of a Minister in the sixth-biggest economy in the world, a mature economy of 68 million people, to impose by ministerial fiat, in primary legislation, the minutiae, the weeds, of
“the content of a plan”
for every business that has more than 250 employees,
“the form and manner in which a plan or information is to be published; when and how”
that plan is published, and, in new subsection (5)(d)—maybe I am being obtuse, but I do not even understand the meaning of this—
“requirements for senior approval before a plan or information is published”?
What does that even mean? Does it mean the chief people officer, the chief executive, the managing director or what?
It would be much better were the Government to use their energy, and the good will that is behind significant parts of the Bill, to work with people such as the Chartered Institute of Personnel and Development, the Equalities and Human Rights Commission, ACAS and others to develop professional, timely briefings for employers. But they are not doing that. They are instead insisting, in the Bill, that they will direct these equality action plans, irrespective of what type of business is being transacted and whether it has a workforce of 251, 25,000 or 250,000.
In fact, the clause does not even define “employee”, “employer” or “descriptions of information”. It fails to define them and says that those details will be reserved for regulations to be laid after the Bill gets Royal Assent. New subsection (7) is also very opaque when it states:
“The regulations may make provision for a failure to comply with the regulations to be enforced, otherwise than as an offence, by such means as are prescribed”.
Again, that is very loosely drawn. We do not know what it means or what sanctions will be in place and available for Ministers to lay down in regulations. New subsection (6) states:
“The regulations may not require an employer, after the first publication of information, to publish information more frequently”.
It does not say “must not”, so Ministers can still use regulations to enforce periodic publications of and changes to these regulations.
For all those reasons, this is an unnecessary clause. It will add costs and administrative burdens. It will certainly take a significant amount of time, for instance, to get in specialists in human resources as consultants to draw up these plans on perhaps a 12-monthly basis. It will take a lot of administrative time and take away from employing people, for the bottom line and profit, which will impact employability. For that reason, I support the proposition that this clause should not stand part of the Bill.
Lord Watson of Invergowrie (Lab)
My Lords, I rise to express a view that I did not think I would be expressing in your Lordships’ House. I am utterly appalled by this proposition and the speech from the noble Baroness, Lady Fox, who, lest there were any doubt, has given the clearest possible indication of her political journey from the extreme left to the extreme right, which is there for all to see.
It is an absolute disgrace to suggest that to seek to help women in the workplace gain equality is somehow to treat them as victims. I did my university dissertation in 1974 on the Equal Pay Act, when the gap between men and women was 25%. Half a century later, it is down to something like 7% or 8%. Yes, that is a huge improvement, but the noble Baroness, Lady Fox, and others who have spoken have said, “Well, that’s okay. We can leave it there. We don’t want to push it any further, because it’s going to burden industry with costs”. What about the women who are burdened with wages lower than they are entitled to get for the job they do on a day-to-day basis?
It is well known that inclusivity in the workforce increases levels of production, is good for problem solving and enhances job retention. I am talking not just about gender issues but wider diversity. The speech that the noble Baroness made and others have echoed will be cheered to the rafters by Nigel Farage and Donald Trump, because it is exactly the sort of thing they have been saying, and I think it is a very dangerous line for Members of this House to push. It is a perfectly legitimate expectation in a Bill such as this that an equality action plan is something that employers should be expected to have. Many already do—they do not need to be told. Good employers have one in place and are benefiting from the standard of output they are getting from employees who are more satisfied because they are clearly better valued. To suggest that we just leave it there is absolute nonsense.
I will not talk about the menopause, but I just could not believe what I heard—that, somehow, women are being painted as victims. As a man, it is difficult for me to comment, but there is a broad spread of opinion that the issue has to be dealt with by employers. To be perfectly fair, some employers do, but others do not, and there should at least be the opportunity for women who want to take advantage of this to be able to do so. To try to slam that door in their faces is an absolute disgrace.
Lord Palmer of Childs Hill (LD)
My Lords, what a relief to hear from the noble Lord, Lord Watson—I thought I was going to be on my own with the comments from the noble Baronesses, Lady Fox and Lady Lawlor, and the noble Lord, Lord Jackson. They were prophets of doom and living in another world.
Lord Hunt of Wirral (Con)
My Lords, I thank the noble Baroness, Lady Fox of Buckley, and my noble friends Lady Lawlor and Lord Jackson of Peterborough because they rightly question whether this clause is necessary to establish what we all agree should be the vital place for equality of opportunity.
It is vital in the workplace that merit should win the day, but there should also be equality of opportunity. Women and men should have equal opportunities, fair treatment and the freedom to thrive regardless of their background. So I hope all those who have spoken, including the noble Lords, Lord Watson of Invergowrie and Lord Palmer of Childs Hill, would agree that we all support equality of opportunity, not just in principle but in practice.
Therefore, it is right that every time there is another step, particularly when it creates more paperwork and more bureaucracy—as the noble Baroness, Lady Fox of Buckley, put it—it is important that we just question whether this is the right way to proceed, particularly, as my noble friend Lord Jackson of Peterborough pointed out, because this is really giving the Government power to do whatever they want to do whenever they wish to do it, by regulation. We do not know what the Government will do because they have not yet consulted on the power that we are about to give them. It is exactly what this House has always preached long and hard against. We should not give Henry VIII powers to the Government to do whatever they would like to do by statutory instrument.
I would have thought that my successor as chair of the Secondary Legislation Scrutiny Committee—the noble Lord, Lord Watson of Invergowrie—would know that more than anyone else. Giving the Government this power has to be justified. My noble friend Lady Fox of Buckley does not need me to defend her against the noble Lord, Lord Watson of Invergowrie, as he saw her move across the political spectrum, but she is right to question this in the way she did. As my noble friend Lady Lawlor put it, we are, in a way, promoting positive discrimination, which undermines achievement on merit.
I hope that the Minister will give very serious thought to explaining exactly what is proposed, rather than wait for the secondary legislation. Let us know, straightaway and in detail, what additional equality action plans are being proposed. We have to pause for a moment to worry about the serious and often unintended consequences that policies such as these can have, particularly for women on the margins of the labour market. The principle behind the measure is commendable —to close the gender gaps, to support women through challenges such as the menopause, and to shine a light on structural inequalities—but, in practice, these kinds of top-down mandates too often result in box-ticking compliance, statistical quotas and public relations targets, and never in real progress.
What gets measured drives what gets managed. When employers are judged by headline figures—gender pay gaps, representation in senior roles—there is an inevitable temptation for them to focus their efforts where the optics are best improved, on high-status, high-visibility roles. As a result, employers might feel pressured to hire or promote individuals with certain characteristics into elite positions just to improve those diversity statistics, rather than genuinely supporting a larger number of people, who are often the minority, who hold lower-paid, insecure or part-time roles and who would benefit most from meaningful reform.
Regardless of sex, ethnicity or sexual orientation, merit should always be the basis for the advancement of an individual. I worry that we risk a situation where the beneficiaries of an equality policy are disproportionately those who are already relatively privileged, while those in cleaning jobs, care work, warehouses, and food processing and service are pushed further to the margins. Even worse, if statistical appearances become the basis of legal or reputational risk, employers may become reluctant to hire minority women at all into lower-paying roles for fear of what the data might suggest. That is not progress; it is perverse.
I warmly applaud the fact that this debate is taking place. Equality is not achieved by engineering the statistics; it is achieved when every person, regardless of sex, class, race or role, has access to fair work, safe conditions, proper pay and genuine opportunity to get on in life. I ask colleagues to consider: will these equality action plans bring meaningful change for working-class young men, people from ethnic minorities and women on zero-hours contracts, or will they largely serve the HR departments of large organisations by helping to polish their diversity reports while little changes on the ground? We cannot effect equality by appearance; we must demand equality by substance.
Lord in Waiting/Government Whip (Lord Collins of Highbury) (Lab)
My Lords, I am grateful to the noble Baroness, Lady Fox, for initiating this probing debate on Clause 31. As the noble Lord, Lord Hunt, highlighted—I like to call him my noble brother after all these years of working together—it enables us to put forward a very strong case. One can always be concerned about Henry VIII powers and secondary legislation, especially when employers are not consulted and the objective is to undermine good industrial relations. I remind my noble brother about the debates we had on the strikes Bill, which was precisely about those issues of unintended consequences.
Ensuring that women can remain in and progress in work is crucial—vital—to economic growth, and yet the national gender pay gap remains at 13.1%. We know that women often face barriers in the workplace that impact their pay, progression and economic participation. Eight in 10 menopausal women say that their workplace has no basic support in place. This lack of support is a barrier and can lead to a significant loss of talent and, just as importantly, productivity.
This is not new. As a trade unionist, I, and my noble brother opposite, know full well—we have heard about all the legislation that has been brought in—that real progress has been effected in the workplace by supporting and amplifying that legislation and giving people the tools to ensure that that legislation has an impact. As a trade unionist, I have seen many initiatives that have delivered better facilities and ensured that women can remain active in the workplace.
I remember a campaign in the 70s and 80s about breast cancer. Many women would not even dare talk about it, but the trade union movement launched a campaign for workplace screening and opened up a debate, so that people could acknowledge the risks and address them, rather than live in isolation and fear. It is important that women are able to talk about the menopause openly and can address it. Breast cancer does not make women victims. We should all be focused on how we can deliver for women. That is really important, and there are many examples.
Since 2017, large employers have been required to publish gender pay gap data. The additional publication of an action plan is precisely to do what the noble Lord opposite has said. How do we see and assess the impact? The additional publication of an action plan has been encouraged, but it is voluntary. However, analysis in 2019 discovered that only half of employers reporting data were voluntarily producing a plan on how they can make improvements. What the noble Lord described is what has happened: they produce the data and do nothing. That is why this legislation is so important, and the next step for improvements for women in the workplace is to make that mandatory.
Of course, we recognise and applaud the best employers, which already recognise the value of supporting women to thrive and are already taking action—many noble Lords addressed that. Following their lead, large employers will be required to detail the actions they are taking to improve gender equality and support employees during the menopause. The intention is to motivate employers to take meaningful action, to break down the barriers and help all women to thrive.
Baroness Fox of Buckley (Non-Afl)
My Lords, I thank all noble Lords who spoke, some of whom were more sympathetic than others to what I was trying to raise.
The noble Lord, Lord Palmer of Childs Hill, made an important point when he talked about the importance of accurate data. I agree, but data and statistics are not flat lines; they are complicated. I tried to indicate, without boring your Lordships with lots of statistics, that the gender pay gap number in relation to statistics is to do with age, the past, the change in relation to young women, and so on, which nobody has come back on. In fact, there are books written, and I have papers, and I have read them all—I will not bore your Lordships now—but I suggest that this is not the key issue facing women at work today.
The noble Lord, Lord Collins, came back on a lot of the points in terms of the aspirations, and I agree with him. However, the Government are overcomplacent about the problems of delegated powers and legislative oversight, which I also raised as a substantial part of my complaint. There was no comeback. I supported the Government when they were in opposition. They constantly raised these issues, and I went along with them and supported them.
Despite what the noble Lord, Lord Watson of Invergowrie, suggested, I thought this was a modest proposal, but somehow I have managed to be accused of fuelling Donald Trump and Nigel Farage, and this was called an illustration of my political journey from far left to far right. I will not do a full critique of the attack on me, which was very personal and personalised, but I would like to point out something.
I was and am a member of the left, and the fact that the Labour Party and the left have moved in a different direction from mine does not necessarily mean that I am the one who has moved to the right. I spend a lot of time talking to ordinary working-class people—women and men—who are tearing their hair out at the attacks on the living standards that they are going through under this Government. Therefore, to be lectured about not understanding the fight against inequality, and the idea that anybody who stands up and challenges an orthodoxy on a potentially bureaucratic plan—by the way, I never mentioned employers and costs; I said it was an insult to women that we got reduced statistics and bits of paper, which was a different point. But anyway, it is crucial that we should challenge the orthodoxies of gender equality when they are presented in this way without being treated as though one is a far-right pariah. It is unworthy of the nature of this House, which is to debate and scrutinise, in my opinion. I simply try to do that.
I still want to push this—more so now than before—on Report, but for now I will not oppose this clause standing part of the Bill.
Lord Sharpe of Epsom
“Use of positive action in the workplace(1) In this section—(a) “P” is a public sector worker who reasonably thinks that the application by P’s employer, in relation to P’s employment or a working practice, of sections 158 and 159 of the Equality Act 2010 has caused or risks causing detriment to P,(b) “R” is P’s public sector employee, and(c) P reasonably thinks that R is responsible for the detriment in subsection (1)(a).(2) A Minister of the Crown must by regulations make provision for—(a) forms through which P may anonymously question R on any matter relevant to subsection (1),(b) forms through which R may answer questions by P, and(c) such forms to be made publicly available.(3) Within six months of the passing of this Act and every three months thereafter, R must publish a report setting out―(a) the number of forms received under subsection (2), and(b) a summary of the nature of the complaints to which they relate.(4) A Minister of the Crown may by regulations require R to report on the use of sections 158 and 159 of the Equality Act 2010.(5) This section does not apply to activities undertaken by R under paragraph 1 of Schedule 9 of the Equality Act 2010.”Member's explanatory statement
This amendment introduces a mechanism for public sector employees who believe they have been disadvantaged by their employer’s use of positive action under sections 158 and 159 of the Equality Act 2010. It would require the Government to create a process allowing such employees to anonymously question their employer and requiring employers to respond.
Lord Sharpe of Epsom (Con)
My Lords, I rise to speak to Amendment 145 standing in my name and that of my noble friend Lord Hunt of Wirral. This amendment introduces a mechanism for public sector workers who reasonably believe that they have been subjected to detriment as a result of their employers’ use of positive action under Sections 158 and 159 of the Equality Act 2010. It does not seek to outlaw such action, nor does it obstruct efforts to promote fairness. Rather, it seeks to ensure that fairness extends to all employees, not only those whom the state or the employer happen to deem underrepresented.
We must confront the uncomfortable truth that some public bodies have begun to apply positive action in ways that no longer reflect the careful balance envisaged by Parliament when the Equality Act was passed. We have now entered territory where lawful positive action shades into unlawful positive discrimination —where the scales of justice have been not merely tipped but turned. For example, let us consider West Yorkshire Police, a force whose conduct in this area raises urgent and serious concerns. It has come to light through both media investigation and internal whistleblowers that recruitment processes have been operated in a manner which in practice delays, restricts or even excludes applications from white British candidates. Candidates from certain ethnic minority backgrounds were allowed to apply early and, in some cases, were mentored through the process by dedicated positive action teams. Meanwhile, white British applicants were told to wait until a general window opened, often for as little as 48 hours. This, we are assured, is not discrimination but rather the fair operation of the law. I do not agree. This is not the spirit nor, arguably, even the letter of the Equality Act. It is a distortion of the law, and it demands redress.
What makes this all the more troubling is that these actions are being taken not by private corporations but by the state, or at least by institutions that act in the name of the state and are funded by the public purse. The taxpayer in this case is being forced to subsidise policies that they might find discriminatory and from which they may be excluded. There seems to be something especially perverse, indeed, almost Orwellian, about that.
This is not merely an abstract concern. West Yorkshire Police, for example, reportedly spent over £1.4 million in recent years on equality, diversity and inclusion staff—more than any other force in the country. That is public money. It is money earned by ordinary citizens, some of whom now find themselves effectively barred from entry into public service not because they lack ability but because their ethnic background does not satisfy an internal diversity target. When questions are raised, when whistleblowers from within these forces speak up, what happens? We hear of them being silenced, reprimanded or warned not to interfere. We hear of secret job listings marked “hidden” in the system, visible only to certain candidates. We hear of candidates greeted with hugs and reassurances that their interviews are merely a formality. That is not recruitment, and it is not equality. It is institutional manipulation.
The amendment before your Lordships seeks to restore a measure of transparency and accountability. It proposes a system by which a public sector worker who reasonably believes that they have been harmed by the operation of positive action can submit a formal question anonymously to their employer. The employer, in turn, must respond. Moreover, employers will be required to publish data on such queries, allowing Parliament and the public to monitor the use and potential abuse of these provisions. This is not a punitive or burdensome requirement; it is the most basic form of procedural fairness.
Let us be clear. This amendment does not challenge the principle of inclusion; it does not deny that discrimination has existed; but it says unequivocally that the answer to past unfairness is not the imposition of new unfairness, that the pursuit of diversity must not come at the expense of justice, and that inclusion must include everybody. Equality before the law is not a suggestion or a secondary consideration to be weighed against modern ideological preferences. It is a constitutional principle that underpins this very Chamber. When we allow it to be weakened quietly and gradually by well-meaning policies that turn into arbitrary practices, we invite division, resentment and, ultimately, more injustice.
The Minister may say that everything that I have described—the delays, the exclusion of white British applicants, the unequal mentoring and the hidden vacancies—is perfectly lawful under existing legislation. He may say that this is precisely how the Government intend for positive action to operate in the public sector. However, I sincerely hope that is not the argument that is to be advanced. Alternatively, the Minister may offer reassurance to the Committee and to the public that existing law already contains sufficient safeguards, and that what we have heard from West Yorkshire Police, Thames Valley Police and others would not and should not be permitted under any reasonable interpretation of the Equality Act. If that is the case, I would welcome that clarification. I would also welcome assurance that there is already a functioning system of redress for individuals who believe that they have been mistreated on the basis of how positive action has been applied.
If the Minister agrees with the points that I have made—that West Yorkshire Police should not have discriminated against white applicants and that there is no mechanism to stop this—then I very much look forward to the Government accepting this amendment. I beg to move.
Lord Liddle (Lab)
I came into this debate by chance, but it seems to me that this is part of a very undesirable development: an attack on the principle of equality, diversity and inclusion policies. These principles are at the heart of my politics. I have fought for racial equality ever since I was a student, when I went on marches against Enoch Powell and what he stood for. I thought that the response of the Labour Government in the 1960s—to make racial discrimination illegal—was very important. In more modern times, when I was chair of Lancaster University and looking at the question of student admissions, I always thought that we should make allowance for the fact that some working-class people had not had the best chance in life and take this into account in admissions procedures Therefore, I rather regret what the Opposition Front Bench is trying to do, which is to undermine the political acceptability of these policies.
There is a danger here. I have seen it from some people in my own party who say that, in response to the alleged great Reform upsurge, we should start abandoning EDI. That would be catastrophic for a social democrat like me, who has always believed in these things. I hope that the Members opposite will withdraw their amendment.
Lord Jackson of Peterborough (Con)
I would gently advise the noble Lord, Lord Liddle, to have read the amendment before he pontificates down memory lane on his great campaigns of the past for equality.
This amendment is about fairness. It ill behoves his party to lecture us on equality when it needed the Supreme Court to tell its own Prime Minister what a woman was. We will take lessons on equality from many people but not from a party that was found to be institutionally racist by the Equality and Human Rights Commission not that long ago.
Let us move on from there because, if noble Lords read this amendment, they will see that it is an amendment that speaks of fairness. All it says, very simply, is that anyone who construes a situation where they have felt themselves personally discriminated against should have a proper, legal and transparent opportunity to question the decision of a person who is taking a big decision in their life: whether to appoint them to a post or not. It is not draconian and does not include fines; it is merely an occasion for that person to challenge a decision taken by authority in a fair, open and transparent way.
Baroness O'Grady of Upper Holloway (Lab)
I hardly know where to start.
Baroness O'Grady of Upper Holloway (Lab)
Certainly, I believe that everybody at work—whatever background they come from and whatever their class, sex, gender or sexuality—should have the right to be treated fairly. I believe that our legal system, our Equality Act, precisely provides that protection for people, but that we can build on it through equality action plans and so on. But I have to say that maybe some noble Lords opposite also need to consider people’s real experience.
I was elected as the first ever woman general secretary of the TUC. Clearly, we were not a movement that rushed things, because it took an awful long time to get to that point. I have enough self-awareness to know that it was not because there were not talented women, black or white, who could have been elected and who had the talent, skills and ability. There was something else going on, and I hope that there would be enough honesty in this House to recognise that black people and women face real barriers that will not be overcome unless we take positive action.
The other point I would just like to reflect on is that, whenever I spoke about seeing more women playing active roles in not just the trade union movement but in public life, including, by the way, lending my support to women who were arguing that we needed more women in the boardroom—I supported that principle—I was always fascinated that, whenever I raised those issues, people, largely men I have to say, would start talking about merit. Well, I have to say, when I look at the upper echelons, I do not always see in those male-dominated and white-dominated ranks people who got there on the basis of merit. I have never seen an advert for a position on a board. I have never known any board member to go through an open recruitment process to get that position. It has very often been a case of a tap on the shoulder.
If we look at how many judges and newspaper editors we have, and specifically at race, sex and gender, yes, the picture has progressed, but we still have a very long way to go. Therefore, I think this amendment is a little disingenuous in trying to suggest that people who have been held back for years because of their class background, race or gender, if given a helping hand and a bit of encouragement to go for it, will somehow cause a meltdown of society.
Achieving what my noble friend said is, quite rightly, part of my history and our history. I hope that it is part of our progress as a country that we value equality. We know that ultimately it is good for all of us, and long may we keep struggling to achieve that goal.
Baroness Carberry of Muswell Hill (Lab)
My Lords, my noble friends on this side of the House have commented on this amendment in far better terms than I could, but I will make a supplementary point. I was very surprised to see this amendment, because one of the perennial themes that we have heard throughout all stages of the Bill in this House has been a complaint about the alleged level of extra bureaucracy that it is supposed to impose on employers. Yet here we see a veritable feast of form-filling and requirements to report on those forms at regular intervals. I suggest that this amendment is not needed; it is surplus to requirements because it places unnecessary burdens on employers.
Baroness Fox of Buckley (Non-Afl)
My Lords, I will be very brief. It is very important that we do not suggest that giving a helping hand to those who have been politically deprived of equality equals equality. It can also equal tokenism. Working-class people, women and people from ethnic minorities have been promoted to positions in authority, and people basically point them out and say, “Look at them: they succeeded”. That is the opposite of equal treatment, and condescension is not a good look.
Baroness Wilcox of Newport (Lab)
My Lords, I can hardly follow my noble friend Lady O’Grady in being the TUC’s first woman general secretary, but I was the first woman leader of Newport City Council after decades and the first woman leader of the Welsh Local Government Association—and am still the only one.
I was also a public service employee for 35 years, when I taught in schools in London and south Wales, so I know about positive action. When I became a public service employer, as the leader of Newport, what I tried to do with positive action was to actively take a range of measures and initiatives to encourage people from communities that were underrepresented. We wanted them to bring their talents, experiences and expertise to our organisation, and we wanted them to join us.
Our selection process was no different: through the use of positive action, we did not seek to remove competition; rather, we wanted to allow everyone the same level of opportunity. That final selection for a post was always made on the merit of the applicant. We built our workforce so that it reflected the rich diversity and complexities of our community of Newport and we attracted the best talent from the widest pool of people.
Lord Collins of Highbury (Lab)
My Lords, this has been an interesting debate on positive action, and I am grateful to the noble Lord, Lord Sharpe of Epsom, for initiating it. It raised important issues but, when the noble Lord, Lord Jackson, spoke of straw-man debates, I thought he was a good example in the issues that he raised, because we are not talking about positive discrimination here. As the noble Lord, Lord Sharpe, acknowledged, all Governments have supported positive action, for very good reasons.
The positive action provisions in the Equality Act 2010 enable, in a work context, both public and private sector employers to prioritise the recruitment of and promote people who have protected characteristics that are underrepresented generally or at certain levels in their workplace.
This is permissible only where the available candidates are considered equally qualified for the particular role. In other words, it is a tie-break based on workforce diversity. We therefore do not accept the premise of the new clause that another employee has suffered an unjustified detriment by not being selected. Of course, we are absolutely clear that it is illegal to positively discriminate, and I will give reasons.
The noble Lord, Lord Sharpe, raised something that I read in the Daily Telegraph about West Yorkshire Police. One of the things that, sadly, many of our newspapers fail to do is to issue the full statement. I thought West Yorkshire Police issued a commendable statement. It said:
“In West Yorkshire Police, we are committed to improving equality, diversity, and inclusion within the organisation, and strive to be more representative of the communities we serve.
Our Diversity, Equality and Inclusion team supports and consults with those with different protected characteristics such as sex, disability, sexual orientation, and race to ensure their views can influence and improve the service the force delivers. They also work to improve the wellbeing of everybody in the organisation and inclusivity overall.
The most recent census found that 23 per cent of people in West Yorkshire identified as being from an ethnic minority background. Our current police officer representation from ethnic minority backgrounds is around nine per cent. To address this under-representation, we use Positive Action under the Equality Act 2010. Our use of this was recently reviewed by His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services in an Activism and Impartiality inspection and no issues were identified.
Positive Action allows people from under-represented groups who express an interest in joining the force to complete an application, which is then held on file until a recruitment window is opened. No interviews are held until the window is officially opened to all candidates. Enabling people from under-represented groups to apply early does not give them an advantage in the application process, it simply provides us with more opportunity to attract talent from this pool of applicants”.
I think that is the point that my noble friend Lady O’Grady was making. It is a pity that the Daily Telegraph did not report the full statement from the police because I think it sets this whole thing in perfect context.
A detriment arises where someone is treated unfairly by their employer—for example, where someone is promoted over them who is clearly a weaker candidate. If the reason for that was based on a protected characteristic, it would be unlawful positive discrimination under the 2010 Act and would be rightly challengeable, but this is not the situation under positive action. I think that has been extremely well illustrated by West Yorkshire Police in terms of how it adopted that policy.
We also have doubts as to whether the processes envisaged could be truly confidential. This could have undesirable implications for both the successful candidate and the complainant. Lawful recruitment decisions are confidential for good reason, and opening them up to this kind of probing risks creating interemployee bad feeling, particularly in smaller departments where the identification of people by inference or guesswork is easier.
The Bill is about improving employment rights, not creating new and unnecessary conflicts. Positive action can work effectively only as part of a confidential recruitment process, where transparency is often good for equality. What is proposed would, I fear, work against that, and as such the Government cannot support the proposed new clause.
Lord Sharpe of Epsom (Con)
I thank the Minister for that comprehensive answer, and I thank all noble Lords who have spoken in this quite lively debate. I have to say I was disappointed that the greatest lady of them all who did not need a helping hand did not get a mention, so I will mention her: Margaret Thatcher.
I say to the noble Lord, Lord Liddle, that we are not seeking to undermine anything in this; I was very clear about that. I want to make it clear that, as I said in my opening remarks, this amendment does not seek to outlaw such action, nor does it obstruct efforts to promote fairness. It just seeks to ensure that fairness extends to all employees, not only to those whom the state or the employer happens to deem underrepresented.
I am grateful to the Minister for his extended quote from the Yorkshire case, but I also mentioned the case in Thames Valley. A tribunal there ruled that the three white police officers who won a claim after they were passed over for promotion were overlooked by Thames Valley Police because of their race and an ethnic-minority sergeant was promoted—this is the killer line—
“without any competitive assessment process taking place”,
which is precisely not the spirit of the laws that we have just been discussing.
Lord Sharpe of Epsom (Con)
That is why we were asking these questions and laying this amendment. It is good to have it out in the open. The amendment sought not litigation but clarity. It sought not courtroom battles but a simple mechanism for transparency and accountability. It would have been a route for asking questions and a structure for reporting. It would be a reminder that positive action must remain within the bounds of the law and fairness, and not become a euphemism for sanctioned discrimination. However, I have heard the arguments from the Minister and, not least because of the lateness of the hour, I am content to withdraw the amendment.