Employment Rights Bill

Lord Monks Excerpts

Committee stage
Wednesday 21st May 2025 Lords Chamber

[Lord Monks (Lab)]

My Lords, it is commonplace for individuals who express personal views that clash with the ethos of a particular company or institution to run into some trouble. Gary Lineker is the latest and most topical example, for displaying material that is considered to be antisemitic. My first experience, age 12, was my father refusing to let me display a political poster at a general election. If I had known about the Free Speech Union, maybe I would have joined the noble Lord, Lord Young, at that stage—maybe he should send Gary Lineker a membership form.

[Lord Young of Acton (Con)]

I have.

[Lord Monks (Lab)]

Oh, he has already done it—very good.

Let us be real about this. A lot of situations call for tact and diplomacy, and for us to be careful about the way we express difficult thing. A lot of people do not do that; they say what they like, thinking it is totally justified, and they get into difficulty. Unions spend a lot of time helping people get round those kinds of situations when they have got into trouble with their employer.

I do not think the argument coming from the other side of the Chamber is a convincing one. Let us remember a bit of common sense, and that tact and diplomacy are still required in many organisations, not just the BBC—and not just with my old dad, who did not like the fact that I had a “Vote Labour” poster in the window.

[Baroness Verma (Con)]

My Lords, I did not want to intervene on this group, but, listening to the noble Lord, I became slightly worried that we are getting into censorship. This country is a proud country because of its ability to speak out and speak up. I would be incredibly nervous if we felt that we could not demonstrate our political views openly without being penalised for it. The unions do their own work, but it is incredibly important that people are able to demonstrate a political affiliation or a particular viewpoint without having to feel that they are going to be censored. That would really worry people like me, who often are the recipient of things that we do not like to hear, but we tolerate it because we think the country enables us to have the debate.

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[Lord Monks (Lab)]

My Lords, I do not doubt that critics of this part of the Bill speak with a lot of personal experience as well as commitment to their employees and the way they run their affairs. However, let me remind people that the argument that is really coming from the other side—that the qualifying period would be damaging to employment—is the argument as has been used against just about every bit of progressive employment legislation from the Factory Acts onwards. If noble Lords think that that is hyperbole, they should remember the national minimum wage and the campaign that was run against it. None of that came to anything like what was forecast from that side of the House. I have risen briefly to ask the other side of the House to remember that it was wrong on the minimum wage and to consider whether it might be wrong on this as well.

[Lord Hendy (Lab)]

My Lords, I get the impression that there is a bit of a misunderstanding around the nature of employment tribunals. I spent the first half of a long career at the Bar doing employment tribunal cases, many of them unfair dismissal cases. In fact, the first case I ever did—pro bono, by the way—was an unfair dismissal case in 1972, under what was then the very new unfair dismissal legislation. Unfair dismissal cases are difficult for employees to win. Most cases that go to a full hearing result in the employer being vindicated.

I want to make two points. The first is that employment tribunals now have robust procedures for weeding out vexatious cases; such cases never go to a full hearing. Secondly, I remind your Lordships of the law on unfair dismissal in Section 98 of the Employment Rights Act 1996. The test is in two parts. First, the employer must demonstrate that the reason for the dismissal is capability, qualifications, conduct or redundancy or the fact that the employment is in breach of some enactment. Once the employer has shown that that is the reason, the test for the tribunal—I shall read it out—is whether the dismissal is fair, which,

“depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee”.

So all the factors that one would expect to have to be taken into consideration are taken into consideration.

The tribunal then has to determine that,

“in accordance with equity and the substantial merits of the case”.

The Court of Appeal has added yet another burden. When the tribunal decides whether the employer acted reasonably or unreasonably, it is not about what it considers was reasonable or unreasonable; it is about whether it considers that the dismissal fell within the band of responses of reasonable employers. It is at two stages removed. It is not like an ordinary negligence case where the court decides whether an employer was reasonable or not reasonable in putting a guard on the machine. It must decide. Even if it thinks that the decision was unreasonable, if it finds that, nevertheless, reasonable employers would say that it might be possible that the reason was fair, that would be legitimate.

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[Lord Barber of Ainsdale (Lab)]

The noble Lord pointed to the daunting process that faces an employer potentially facing an employment tribunal accusation that would damage perhaps their reputation, as well as the daunting issues that also face the employee who is considering going down that course. My noble friend made some emphasis on that point.

The debate has been conducted as if this is a hugely common threat: indeed, as if it is a threat that, potentially, is going to do tremendous damage to our economy. But could I just point to the scale of the issue? In 2023-24, there were just over 5,000 unfair dismissal cases referred from the Tribunals Service to ACAS for the conciliation processes that my noble friend referred to. What is the size of our workforce in the British economy? Is it 25, 26, 27—

[Lord Monks (Lab)]

Thirty-four.

[Lord Barber of Ainsdale (Lab)]

Thirty-four million workers. Five and a half thousand cases. Why is the number so small? It has been suggested that it is because an employer’s immediate response is to offer a settlement to buy off the prospect of a tribunal. Some may make that judgement, but, given the evidence my noble friend has referred to about the unlikelihood of applicants succeeding with their claims, that does not seem a very wise response to give. There may be some, but for the individual, it seems to me, more daunting factors influence them to hold back because it is so painful and potentially stressful that they are reluctant to take their case in the first place.

This whole Bill is about giving people at work in Britain more confidence and there needs to be some sense of perspective about the scale of the issue we are talking about. Five thousand people.