Employment Rights Bill

Lord Fox Excerpts

Committee stage
Monday 19th May 2025 Lords Chamber

[Baroness Carberry of Muswell Hill (Lab)]

My Lords, I did not want to interrupt the noble Baroness when she was speaking. However, I refer her to Section 26 of the Equality Act 2010, with which I am sure she is familiar, as an EHRC commissioner. That is where the relevant test is set out.

[Lord Fox (LD)]

My Lords, this has been an interesting debate. It is difficult to know where to start, so I thought I would do so with a couple of parish notes. To the noble Baroness, Lady Noakes, I say that the young man who was on the other end of her call was required by contract to read out a script. If he had deviated from the script, he would have been dismissed. The noble Baroness was not guilty of harassment, but of a lack of empathy concerning his contract. To the noble Baroness, Lady Deech, I can report that hummus is for sale in the Co-op in Bow. Indeed, following the cyberattack, that was about all it had for sale. To the noble Lord, Lord Londesborough, I say that were he taken to court in the circumstances he describes—though I think that unlikely—for being grumpy in a football ground, all he would have to do was say where he was, and the judge would let him off on mitigating circumstances.

When the noble Lord, Lord Young, was announced as a peer I was very pleased, because I thought he would add something to your Lordships’ House from which we would benefit. To a great extent, that has revealed itself today. Through a cleverly and carefully constructed straw man argument, he has set up today’s debate. That straw man has been paraded, hoisted aloft, by a series of speeches either wittingly or unwittingly misapprehending the purpose of Clause 20. Before I begin to discuss that, though, let me say that I have been worrying about the use of the word “banter”. That word causes me to worry, and I will explain why to the noble Lord, Lord Young. For as long as I can remember, it has been used as a defence: “It was only a bit of banter”. It was only a bit of banter, but what was it? It has been justifying racism, sexism and homophobia since time immemorial. I was very surprised, therefore, that a man who understands words in the way the noble Lord, Lord Young, does, should use that phrase. The alliteration may work; but I am not happy with the word “banter”.

As I understand it, the point of the Bill is not the noble Lord’s straw man of policing personal conversations; the point is to take on the problem of workplace bullying by customers and users of particular facilities, and ensure that the employers adequately defend the workers, particularly those who have to interact with the public and who may otherwise feel exposed.

I would like briefly to drag this debate into the area of the practical reality for many people, often young, who work in industries where contact with customers is unmediated. After graduating, I ran a bar for a year, and I know what it is like for people working in those environments. They are largely in service industries—the very industries that some of your noble Lordships seek to absent from the Bill. My understanding of this part of the Bill is that it aims to protect people from having to withstand unreasonable behaviour. If we were to throw out that objective in the way that some of these amendments suggest, that would be to declare that we do not care about the plight of those employees and how they are treated.

The noble Baroness, Lady Fox, talked about the customer always being right. That is one of the problems. In the past, bosses have taken the side of customers against employees because they need the trade. In a way, the clause seeks to address that. There are other potential economic benefits, too. For example, many people talk a lot about recruitment problems in the service industry. One of the ways of enhancing such jobs would be for potential recruits to know that their employer has their back. Many good employers already do that; but everybody needs to know that there is an expectation across the board that they will be protected.

To echo my cry at the start of Committee, we need to see how the Government expect this to operate. Here, I join forces with the noble Baroness, Lady Noakes. We need to see what the draft regulations will look like and understand how the guidelines will interpret those regulations, so that your Lordships can be calmed and brought down from the current position.

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[Lord Fox (LD)]

Was the noble Lord in the Chamber at the beginning of the debate?

[Lord Murray of Blidworth (Con)]

I was—I was sitting over there. I apologise to the noble Lord, Lord Fox, for speaking after him. I am sure he is welcome to speak after me if he disagrees with anything I have to say.

Obviously, I am a barrister, as are many of the contributors this evening. I practised in the employment tribunal and in human rights, and I am a member of the Joint Committee on Human Rights. The Joint Committee wrote to the Government in respect of the Bill, expressing concerns that were reflected by the Equality and Human Rights Commission: in particular, the potential for a conflict between the right to freedom of expression, guaranteed by Article 10—as we have heard from various noble Lords—and the Article 8 right to a private and family life. That balancing exercise would be difficult for many employers to carry out.

The previous iterations of measures of this type included safeguards which have been omitted from the Bill, as the noble Lord, Lord Young, pointed out. In the Worker Protection (Amendment of Equality Act 2010) Act 2023 there was a measure that sought to place a duty on employers to take reasonable steps to prevent sexual harassment of their employees, and which is now Section 40A of the Equality Act. During its passage through Parliament, that Bill included provisions which sought to introduce a duty on employers to prevent non-sexual harassment of their employees by third parties. That was Clause 1 of that Bill, as brought from the House of Commons. That provision failed. It would have required all reasonable steps to have been taken to prevent harassment of the employee, solely because they did not seek to prevent the expression of an opinion in circumstances where the conduct constituting harassment involved a conversation in which an employee was not a participant.

In short, the Government have so far failed to answer the question from the Joint Committee about their reasoning for not including a similar carve-out for overheard opinions in the new duty in Clause 20. That was echoed in the original iteration of the Equality Act 2010, passed by the previous Labour Government, under Section 40(2) to (4). That would have required an employer to be liable for third-party harassment where they had failed to take such steps as would have been reasonably practicable to prevent the harassment. However, to be liable, the employer would have had to have known that the employee had been harassed by a third party on at least two other occasions.

The Government have decided not to adopt the same three-strike policy taken in the equivalent provisions or in the earlier potential measure proposed in the 2023 Act. Instead, we have a rule-making power that is said to provide what steps are to be regarded as reasonable. To my mind, that sits uneasily with the mandatory terms set out in new subsection (1A). For those reasons, it should not be part of this legislation.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I presume that it is where employees are based here in the UK, but if I am wrong I will write to the noble Baroness and clarify that.

In conclusion, I am grateful to all noble Lords for tabling these amendments but, for the reasons set out, the Government cannot support them. The Government are on the side of workers, not abusers. We will ensure that workers have the fair protections at work that they deserve. I therefore ask that Amendment 83 is withdrawn and that Clause 20 stands part of the Bill.

[Lord Fox (LD)]

I asked the Minister to set out in detail how future regulations and these clauses will work in practice. I hope she is able to take that on board between Committee and Report.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I will attempt to update your Lordships’ House on these issues at the time the noble Lord has suggested.