Employment Rights Bill (Nineteeth sitting)

Steve Darling Excerpts

Committee stage
Tuesday 14th January 2025 Public Bill Committees

[Greg Smith (Mid Buckinghamshire) (Con)]

It is a pleasure to serve under your chairmanship once more, Mr Mundell.

As the Minister has outlined, Government amendment 183 will ensure that section 12(2) of the Gangmasters (Licensing) Act 2004, which makes it an offence for a person to be in possession or control of a relevant document that is false or has been improperly obtained with the intention of inducing someone to believe that the person has a licence under the Act, continues to apply in respect of documents issued by the Gangmasters and Labour Abuse Authority in connection with a licence before its abolition.

Clause 109 will abolish the Gangmasters and Labour Abuse Authority, a non-departmental public body that investigates reports of worker exploitation and illegal activity such as human trafficking, forced labour and illegal labour provision, as well as making offences under the National Minimum Wage Act 1998 and the Employment Agencies Act 1973. Significantly, the Gangmasters and Labour Abuse Authority also issues licences to employment agencies, labour providers or gangmasters who provide workers in the sectors of agriculture, horticulture, shellfish gathering and any associated processing or packaging. That is important work; we do not in any way, shape or form deviate from that.

The Government amendment will rightly ensure that providing false licences remains an offence, including where that was identified before the Bill receives Royal Assent and becomes an Act at some point this year, but I would like to be reassured about the work of the Gangmasters and Labour Abuse Authority in connection with the provisions of the Bill. For example, what will happen to the staff at the authority once it has been abolished? The Bill provides for the transfer of staff, property rights and liabilities to the Secretary of State. Does the Secretary of State envisage redundancies or envisage that the same staff will continue to do the same work under a different ultimate authority? Will the reorganisation lead to any disruption? I think we all accept that any change will bring with it some level of disruption, but how can the disruption be minimised?

Likewise, the amendment appears to ensure continuity with existing legislation once the Bill has passed. I will be grateful if the Minister can confirm that that is the case. If any new powers are being taken, please could they be explained?

[Steve Darling (Torbay) (LD)]

It is a pleasure to serve under your chairmanship, Mr Mundell. I welcome the clarity offered by the Government in the amendment.

[Sir Ashley Fox (Bridgwater) (Con)]

It is a pleasure to serve under your chairmanship, Mr Mundell.

The amendment will ensure that the provisions of section 12(2) of the Gangmasters (Licensing) Act 2004 remain effective even in the context of the changes proposed in the Bill. Section 12(2) will make it a criminal offence for an individual to be in possession or control of a relevant document that is false, is forged or has been improperly obtained with the intention of deceiving others into believing that the individual holds a valid licence under the Act. It is essential that that provision continues to apply to documents issued by the Gangmasters and Labour Abuse Authority before its abolition, ensuring that any fraudulent documents issued before the GLAA is dissolved can still result in prosecution. Maintaining that provision is crucial to preventing exploitation and ensuring that individuals and businesses cannot evade accountability with fraudulent documentation.

Clause 109 proposes to abolish the Gangmasters and Labour Abuse Authority, which plays a significant role in tackling issues such as labour exploitation, human trafficking and forced labour in certain sectors. The dissolution of the GLAA marks a significant shift in how those matters will be managed. Given the importance of its work, the transition raises important questions about how those responsibilities will be carried forward under the new structures set out by the Bill. The GLAA has played a vital role in regulating the labour market in high-risk industries, so the Government’s proposal to abolish it must be accompanied by a clear plan to ensure continuity of its crucial work.

The GLAA is a non-departmental public body that has been responsible for investigating and addressing serious forms of worker exploitation such as human trafficking, forced labour and illegal labour practices. Additionally, it monitors compliance with regulations under the National Minimum Wage Act and the Employment Agencies Act. By issuing licences to employment agencies, labour providers and gangmasters in high-risk sectors, including agriculture, horticulture, shellfish gathering and associated processing and packaging, the GLAA has been instrumental in safeguarding vulnerable workers and preventing exploitation.

--- Later in debate ---

[Greg Smith]

Through this morning’s debate on the 10 Government amendments to schedule 6, most of the points about the schedule have been well aired. As we consider whether it should fully stand part of the Bill, however, I genuinely believe that a number of questions posed—in particular by my hon. Friends the Members for West Suffolk and for Bridgwater—on the practicalities of the transfer of some of the powers have not been adequately addressed during the debate by the Minister.

We do not challenge or seek to undermine in any way, shape or form the intention of the schedule. I appreciate the Minister’s willingness to write to me on a couple of the points I made, and I accept the good faith in which that offer was made, but any transition involves some disruption. That is simply a fact of life, and I think that the Government would do well, given the good intent of what the schedule seeks to do, to reassure not just the Committee, but the whole House and the country at large, that that disruption will in fact be minimised and practical steps taken to make that the case.

Fundamentally, however, His Majesty’s loyal Opposition understand and accept the necessity of the schedule. We just think that some unanswered questions remain.

[Steve Darling]

I echo the shadow Minister, who sits to my right—in more ways than one. Definitely, further clarity from the Minister would be welcome.

[Justin Madders]

I understand what the Opposition Members are saying. They seek reassurance that there will be no disruption to the good work that goes on already, and clearly, that is our intent. We will keep a close eye on how this works when the Bill has passed and received Royal Assent. A lot of the operational questions that have been asked will emerge during that time. Whether the hon. Member for Mid Buckinghamshire remains my shadow—either of us could of course be moved on at any point—it would be perfectly reasonable for us to keep the Opposition updated on operational decisions and how the fair work agency emerges. There will of course be further parliamentary opportunities for scrutiny as more detail emerges.

Question put and agreed to.

Schedule 6, as amended, accordingly agreed to.

Schedule 7

Transitional and saving provision relating to Part 5

Employment Rights Bill (Twentieth sitting)

Steve Darling Excerpts

Committee stage
Tuesday 14th January 2025 Public Bill Committees

[Mr Bedford]

Thank you, Ms Vaz. Who would be there to care for them if something terrible were to happen? Most importantly, for my constituents, who is there to stop these prisoners getting out of the prison grounds? We could have a situation whereby, within a short journey of Mid Leicestershire, hundreds of inmates are on the run. Furthermore, with the funding settlement that the Government have announced for rural areas such as Mid Leicestershire, it is questionable whether the police would be able to catch those who have escaped.

It appears that my opinion is not unique. YouGov has been polling the UK public on the matter since August 2019, when 52% of the public thought that prison guards should not be able to strike. Incredibly, even through tough times, that figure has increased to 54%.

I believe that the public would be particularly sceptical about new clauses 2 and 3 because of the riots that they have seen on prison grounds, which unfortunately have happened even when prison officers have been on the premises. For example, many remember the riots at Strangeways in 1990, which were caused by poor officer-prisoner relations and poor conditions on prison grounds.

I am also concerned about the two-tier impact on police and prison officers. The policing profession is intrinsically linked to that of prison officers. Police officers are at the heart of keeping the public safe. Police officers throughout the UK join the profession willingly and, because of their professionalism, accept that they will never be able to strike. Police officers throughout the UK know how important it is to keep the public safe. In fact, many police officers I talk to express their annoyance at how little they can do to fight real crime when a lot of their time is taken up by other issues, such as non-crime hate incidents and investigating dubious posts on social media.

However, the crux of the argument against new clauses 2 and 3 is public safety and the lack of supervision should they be accepted. I therefore hope that they are not added to the Bill.

[Steve Darling (Torbay) (LD)]

I am sure that my residents would be horrified that these proposals are seeing the light of day in the Committee. I am shocked that Conservative Members are putting them out there. I expected us just to pass on by them, but I want to make sure that it is on the record that the Liberal Democrats do not support these rather peculiar proposals, which have only seen the light of day thanks to a Conservative Member.

[Justin Madders]

There are approximately 170,000 words in the “Oxford English Dictionary”, but I am struggling to find one to adequately encapsulate the speech by the hon. Member for Mid Leicestershire. It is clearly a novel approach to a Bill Committee to move an amendment and then speak against it. I do not think anything he said would have persuaded me the other way had I not already been minded to oppose the new clauses, although he did his best.

It is important that we put on the record our appreciation for the work of prison officers. They work in difficult environments every day, dealing with very challenging people, and we recognise that they are critical to keeping the public safe. Under the current legislation, prison officers are prevented from taking industrial action, and their pay is governed by the independent Prison Service Pay Review Body, which acts as a compensatory mechanism for that restriction. Indeed, one of the first actions of this Government was to accept the pay review body recommendations for 2024-25, and we delivered on our commitment to launch the 2025-26 pay review body process in September, three months earlier than the previous Government did. Our written evidence to the body for the next pay round was published on 10 December, paving the way for a timely pay round. We are well positioned for that process to conclude. We need to ensure that everyone who works in a prison has the right to decent conditions and a fair reward for their hard work. The Government are committed to achieving that, but I believe that we can do so without the need for legislative change.

Prison officers are essential to maintaining order and control in prisons. A withdrawal of their services, as we have heard, even if only partial, would create a risk to order and to the life and limb of individuals. There are limited contingency plans in place to deal with strike action and, during such incidents, reliance on a narrow pool of operational managers and support from the police would create risks. I am sure that Members do not need that spelling out. This would also result in significant disruption to the operation of the courts and the police, representing a significant risk to public safety.

I know that the POA is very keen, understandably, to have this proposal enacted. Its representatives have met the Justice Secretary recently, and they continue to do so, and I have spoken to them. I understand their view, but we cannot agree to this at this point. I do not know whether the amendment will be pushed to a vote—I suspect that it will not be, from what the hon. Member for Mid Leicestershire said—but we will not support it.

[Mr Bedford]

Held by my arguments and the arguments put forward by hon. Members, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 4

Non-disclosure agreements: harassment

“(1) Any provision in an agreement to which this section applies is void insofar as it purports to preclude the worker from making a relevant disclosure.

(2) This section applies to any agreement between a worker and the worker’s employer (whether a worker’s contractor not), including any proceedings for breach of contract.

(3) In this section, a ‘relevant disclosure’ means any disclosure of information which, in the reasonable belief of the worker making the disclosure, shows that harassment has been committed, is being committed or is likely to be committed, by a fellow worker or a client of the employer.

(4) In this section, ‘harassment’ means any act of harassment as defined by section 26 of the Equality Act 2010.”—(Steve Darling.)

This new clause would render void any non-disclosure agreement insofar as it prevents the worker from making a disclosure about harassment (including sexual harassment).

Brought up, and read the First time.

[Steve Darling]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss amendment 4, in clause 118, page 104, line 32, at end insert—

“(aa) section [Non-disclosure agreements: harassment];”

This is a consequential amendment to NC4, to ensure its implementation.

[Steve Darling]

It is a pleasure to serve under your chairmanship, Ms Vaz. When I became an MP, I never thought that I would be standing before a Committee talking about clause 4. However, this is not about public ownership but is actually about non-disclosure agreements. Non-disclosure agreements were originally about keeping trade secrets but, over recent years, they have proliferated and, sadly, have kept shameful secrets away from the public eye in situations where light needs to be cast to make sure that things are tackled. Sadly, I personally have been signed up to one of these agreements. I reassure the Committee that it was not a business in my constituency, but another one where I suffered a level of discrimination, and I had to sign an NDA. That did not allow me to cry foul on a certain issue that myself and my family suffered.

As for the bigger picture of where NDAs have been used at an industrial level, one only has to look at Harrods and the stories that have come up around sexual harassment. Part of the Bill is about trying to tackle harassment and sexual harassment. New clause 4 strengthens the Bill by making sure that NDAs are exempt from this area. As I alluded to with Mohamed al-Fayed, these were used at an industrial level when people were at a very confused stage, and were very vulnerable. I ask the Minister to give serious consideration to incorporating the new clause in our proposals.

This is a golden opportunity. We have already seen Ireland take this step. I encourage the Minister to embrace new clause 4.

[Greg Smith]

I shall speak briefly to new clause 4, tabled by the Liberal Democrats. Of course, His Majesty’s loyal Opposition support all practical measures to combat harassment and sexual harassment wherever it occurs. Our challenge to the proposal put forward by the hon. Member for Torbay on behalf of the third party is about understanding where the shortfalls are in existing whistleblower legislation that make the amendment necessary. I heard what he said about his personal experience, but our analysis of the provisions of legislation that is active and live now, as we consider the new clause in Committee, shows that whistleblowing legislation already covers what he is trying to achieve. We are not certain why it is necessary, on a practical level, to add the new clause to the Bill.

[Justin Madders]

First, I thank the Liberal Democrat spokesperson for moving the new clause. This is his clause 4 moment—the road to socialism is often a long one, but I am glad to see he is taking steps towards it. He raises an important topic on behalf of the hon. Member for Oxford West and Abingdon (Layla Moran); indeed, a number of Members of the House have discussed it with me over a period of time, because the use of non-disclosure agreements presents challenges.

As has been said, NDAs can be used quite legitimately in different contexts and contracts. As the responsible Department for the use of NDAs in employment relationships, we recognise that they can have a legitimate role, such as to protect trade secrets, intellectual property and commercially sensitive information. Of course their most common use is in allowing workers and employers to reach a settlement on a dispute or a claim. It goes without saying that a worker may want to settle a dispute and receive the confidentiality protections associated with a settlement agreement to avoid going through an employment tribunal, which can be a distressing experience in itself. Having a non-disclosure agreement can also increase the value of such an agreement, depending how negotiations go.

There are existing legal limits to the use of NDAs in the employment context. For example, any clauses of an NDA that sought to stop a worker blowing the whistle to a lawyer or a prescribed person under the legislation would not be enforceable. The use of an NDA by an employer may amount to a criminal offence if it is an attempt by the employer to pervert the course of justice or conceal a criminal offence. A settlement agreement under the Employment Rights Act 1996 and any confidentiality clauses it contains is void if the worker did not receive independent advice on the terms and effect of the agreement. Speaking as one who has given such advice on countless occasions, I can assure the Committee that this a matter the legal profession takes very seriously. None the less, workers may not be aware of their rights.

Both the Equality and Human Rights Commission and ACAS have published guidance on NDAs, but reports continue of improper use of NDAs, as the hon. Member for Torbay mentioned, particularly in relation to sexual harassment, discrimination and bullying in the workplace. Last year, the Women and Equalities Committee inquiry into misogyny in music and the Treasury Committee inquiry into sexism in the City reported on the misuse of NDAs in specific sectors and industries. Their reports highlighted how NDAs can have a silencing effect on some victims, who come under pressure to sign an NDA and are not aware of their existing rights, and how NDAs may be a part of wider organisational cultures and practices for some employers. We have heard a clear example of that today. The Solicitors Regulation Authority and the Legal Services Board have also recently conducted a call for evidence and a thematic review into the use of NDAs among the legal profession. Overall, those reports highlight that, while we have seen some progress and some positive developments, the issues in this space are multiple and persistent. The Government are live to the concerns about the misuse of NDAs to intimidate and silence victims of crime and other types of misconduct, particularly harassment, discrimination, and bullying.

The Victims and Prisoners Act 2024 contains a measure that, when commenced, will ensure that victims can report a crime, co-operate with regulators and access confidential advice and support without fear of legal action. It does so by providing that any clauses in NDAs seeking to prevent those actions cannot legally be enforced. The Ministry of Justice is carefully considering plans to bring the relevant section of that Act into force and will be working closely with the victim support and business sectors to ensure that the new measure is implemented and deployed effectively. We continue to listen carefully to representations on further action needed to curb the misuse of NDAs.

The specific wording that is proposed today would make any provision in an agreement precluding a worker from making a relevant disclosure that relates to harassment carried out by a fellow worker, or client of their employer, unenforceable. Under the consequential amendment, the measure would come into force on the day that this legislation is passed. I have some reservations about the amendment as drafted, as it would make a significant change from the current position and there might be unintended consequences.

To render provisions related to disclosures on harassment unenforceable could have negative effects on both workers and employers. A worker may want to settle a dispute over harassment and receive the confidentiality protections associated with a settlement agreement. The proposal may also impact on their ability to reach a settlement and avoid going to an employment tribunal, or may indeed reduce the value of such an agreement. The amendment may also lead to uncertainty for both employers and workers who have entered into NDAs previously.

The Government are looking into this. There is obviously some evidence, and there was a Government consultation, but that was some time ago, so we intend to look more closely at what we can do in this area. I have met some of the interested parties and there are other proposals to deal with this issue that might be slightly more workable than those in the new clause proposed by the Liberal Democrat spokesperson. I say to him that although we are aware of this issue and know it needs attention, we are not able to support the new clause.

[Steve Darling]

I welcome the Minister’s reassurances and I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

New Clause 12

Substitution Clauses

“(1) Any agreement, whether a contract or otherwise, between—

(a) an employer or a contractor of services, and

(b) an employee, worker or dependent contractor

must not include provision for the employee, worker or dependent contractor to appoint a substitute to supply services or undertake work on their behalf.

(2) For the purposes of subsection (1)(a), “contractor of services” means an organisation that—

(a) enters into an agreement, whether a contract or otherwise, with a supplier or dependent contractor to supply services,

(b) does not require the supplier or dependent contractor to supply services, and

(c) pays the supplier or dependent contractor according to tasks performed rather than hours of work.

(3) For the purposes of subsection (1)(b), "dependent contractor" means an individual who—

(a) is appointed to perform work or services for an employer or contractor of services,

(b) is paid according to tasks performed rather than hours of work,

(c) depends partially or primarily on the employer or contractor of services for employment and income,

(d) is not required to perform services for the employer or contractor of services, and

(e) is not specified as an employee or worker within a statement of employment particulars or a contract of employment.”—(Nick Timothy.)

This new clause would prohibit the use of “substitution clauses”, which allow companies to permit their suppliers – including some delivery couriers – to appoint a substitute to supply services on their behalf.

Brought up, and read the First time.

[Nick Timothy (West Suffolk) (Con)]

I beg to move, That the clause be read a Second time.

--- Later in debate ---

[Nick Timothy]

I thank the Minister for his constructive reply. If he is willing to have further conversations with me about what solutions we might be able to bring to bear on this problem, I will be happy to withdraw the new clause now. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 13

Rates of statutory maternity pay, etc

“(1) In regulation 6 of the Statutory Maternity Pay (General) Regulations 1986 (prescribed rate of statutory maternity pay) for ‘£184.03’ substitute ‘£368.06’.

(2) In the Statutory Paternity Pay and Statutory Adoption Pay (Weekly Rates) Regulations 2002—

(a) in regulation 2(a) (weekly rate of payment of statutory paternity pay) for ‘£184.03’ substitute ‘£368.06’; and

(b) in regulation 3(a) (weekly rate of payment of statutory adoption pay) for ‘£184.03’ substitute ‘£368.06’.

(3) In regulation 40(1)(a) of the Statutory Shared Parental Pay (General) Regulations 2014 (weekly rate of payment of statutory shared parental pay) for ‘£184.03’ substitute ‘£368.06’.

(4) In regulation 20(1)(a) of the Statutory Parental Bereavement Pay (General) Regulations 2020 (weekly rate of payment) for ‘£184.03’ substitute ‘£368.06’.”—(Steve Darling.)

This new clause sets out rates of Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay.

Brought up, and read the First time.

[Steve Darling]

I beg to move, That the clause be read a Second time.

I thank my hon. Friend the Member for Twickenham (Munira Wilson) for assisting in tabling the new clause, which is about ensuring that we put the family at the heart of our society by doubling the rates of maternity, paternity, adoption, shared paternity and parental bereavement pay, which are really important when people are on leave. Sadly, a lot of men choose not to take up these opportunities. We will discuss later our proposals on kinship care and fostering, and this is all part of that bigger picture. By supporting families with these four proposals in the three key areas that they cover, we are putting family at the heart of our world. One only has to reflect on social care and children’s social care, and the significant cost where there is family breakdown, to see that the more the state can do to support families, the better.

I would like to move on to kinship care, where there are real opportunities. I know that the all-party parliamentary group on kinship care has discussed these measures and sees this as a real opportunity for the Government to move positively to support kinship carers.

[The Chair]

Order. Can I just interrupt the hon. Gentleman? That is the next new clause. We are on rates of statutory maternity pay, etc.

[Steve Darling]

That is fine. As I said, the new clause is about supporting the family, and I hope the Minister will give serious consideration to our proposals. Apologies for misunderstanding, Ms Vaz.

[The Chair]

That is fine—don’t worry.

--- Later in debate ---

[The Minister for Equalities (Dame Nia Griffith)]

It is a pleasure to see you in the Chair, Ms Vaz. I thank the hon. Member for Torbay for introducing the new clause, and for his absolute sincerity in wanting to support families.

The Government are committed to ensuring that employed parents receive the best level of support to balance their work and family lives. Our plan to make work pay will ensure that employees are supported to work while balancing their essential family responsibilities. We understand that parental leave and pay entitlements are a key part of that, and that is why the Bill will already make changes to parental leave.

The new clause would double the existing rate of statutory parental payments from £184.03 to £368.06. When considering calls to increase the level of parental pay generally, we need to consider the impact on limited resources and the burden on employers. Changes to parental pay would require careful consideration alongside tax reform and consideration in the wider context of benefits and employment rights over the longer term, and they would need to be made in consultation with businesses and stakeholders.

The Secretary of State for Work and Pensions is required by law to undertake an annual review of benefits and state pensions, including statutory payments. That is based on a review of trends in prices and earnings growth in the preceding year. Parental payments are generally increased in line with the consumer prices index. For example, in April, all statutory parental pay provisions, including statutory maternity pay, statutory paternity pay and statutory adoption pay, were increased by 6.7%. That is in line with other benefits.

It is worth noting that statutory parental pay is only one element of the support available to parents. Depending on individual circumstances, additional financial support, such as universal credit, child benefit and the Sure Start maternity grant—a lump sum payment of £500—may also be available. I therefore ask the hon. Member for Torbay to withdraw the motion.

[Steve Darling]

I will just share with colleagues that this measure was part of the commitments in the Liberal Democrats’ fully costed manifesto. I thank the Minister for their reassurances. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 14

Kinship care leave

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

(2) After section 80EE insert—

‘Chapter 5

Kinship care leave

80EF Kinship care leave

(1) The Secretary of State must make regulations entitling an employee to be absent from work on leave under this section if the employee satisfies conditions specified in the regulations as to an eligible kinship care arrangement with a child.

(2) The regulations must include provision for determining—

(a) the extent of an employee’s entitlement to leave under this section in respect of a child;

(b) when leave under this section may be taken.

(3) Provision under subsection (2)(a) must secure that—

(a) where only one employee is entitled to leave under this section in respect of a given child, the employee is entitled to at least 52 weeks’ leave;

(b) where more than one employee is entitled to leave under this section in respect of the same child, those employees are entitled to share at least 52 weeks’ leave between them.

(4) An employee is entitled to leave under this section only if the eligible kinship care arrangement is intended to last—

(a) at least one year, and

(b) until the child being cared for attains the age of 18.

(5) For the purposes of this Chapter, ‘eligible kinship care arrangement’ means—

(a) special guardianship,

(b) a kinship child arrangement,

(c) a private fostering arrangement, or

(d) a private family arrangement,

within the meaning given by section (Meaning of ‘kinship care’) of the Employment Rights Act 2024.

(6) The regulations may make provision about how leave under this section is to be taken.

(7) In this section—

(a) “special guardianship”, “kinship child arrangement”, “private fostering arrangement” and “private family arrangement” have the same meanings as in section (Meaning of “kinship care”) of the Employment Rights Act 2024.

(b) “week” means any period of seven days.

80EG Rights during and after kinship care leave

(1) Regulations under section 80EF must provide—

(a) that an employee who is absent on leave under that section is entitled, for such purposes and to such extent as the regulations may prescribe, to the benefit of the terms and conditions of employment which would have applied but for the absence,

(b) that an employee who is absent on leave under that section is bound, for such purposes and to such extent as the regulations may prescribe, by obligations arising under those terms and conditions (except in so far as they are inconsistent with subsection (1) of that section), and

(c) that an employee who is absent on leave under that section is entitled to return from leave to a job of a kind prescribed by regulations, subject to section 80EH.

(2) The reference in subsection (1)(c) to absence on leave under section 80EF includes, where appropriate, a reference to a continuous period of absence attributable partly to leave under that section and partly to any one or more of the following—

(a) maternity leave,

(b) paternity leave,

(c) adoption leave,

(d) shared parental leave,

(e) parental leave,

(f) parental bereavement leave.

(3) In subsection (1)(a), “terms and conditions of employment”—

(a) includes matters connected with an employee’s employment whether or not they arise under the contract of employment, but

(b) does not include terms and conditions about remuneration.

(4) Regulations under section 80EF may specify matters which are, or are not, to be treated as remuneration for the purposes of this section.

(5) Regulations under section 80EF may make provision, in relation to the right to return mentioned in subsection (1)(c), about—

(a) seniority, pension rights and similar rights;

(b) terms and conditions of employment on return.

80EH Special cases

(1) Regulations under section 80EF may make provision about—

(a) redundancy during or after a period of leave under that section, or

(b) dismissal (other than by reason of redundancy) during a period of leave under that section.

(2) Provision by virtue of subsection (1) may include—

(a) provision requiring an employer to offer alternative employment;

(b) provision for the consequences of failure to comply with the regulations (which may include provision for a dismissal to be treated as unfair for the purposes of Part 10).

80EI Chapter 5: supplemental

(1) Regulations under section 80EF may—

(a) make provision about notices to be given, evidence to be produced and other procedures to be followed by employees and employers;

(b) make provision requiring employers or employees to keep records;

(c) make provision for the consequences of failure to give notices, to produce evidence, to keep records or to comply with other procedural requirements;

(d) make provision for the consequences of failure to act in accordance with a notice given by virtue of paragraph (a);

(e) make special provision for cases where an employee has a right which corresponds to a right under section 80EF and which arises under the person’s contract of employment or otherwise;

(f) make provision modifying the effect of Chapter 2 of Part 14 (calculation of a week’s pay) in relation to an employee who is or has been absent from work on leave under section 80EF;

(g) make provision applying, modifying or excluding an enactment, in such circumstances as may be specified and subject to any conditions which may be specified, in relation to a person entitled to take leave under section 80EF;

(h) make different provision for different cases or circumstances;

(i) make consequential provision.

(2) The cases or circumstances mentioned in subsection (1)(h) include—

(a) more than one child being subject to the same eligible kinship care arrangement, and

(b) a child being subject to an eligible kinship care arrangement on two or more separate occasions,

and regulations may, in particular, make special provision regarding the applicability and extent of the entitlement to leave in such circumstances.

(3) The Secretary of State may by regulations make provision for some or all of a period of kinship care leave to be paid.’”—(Steve Darling.)

This new clause sets out an entitlement to kinship care leave.

Brought up, and read the First time.

[Steve Darling]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 15—Meaning of “kinship care”—

“(1) This section defines ‘kinship care’ for the purposes of sections 80EF to 80EI of the Employment Rights Act 1996 (inserted by section (Kinship care leave) of this Act).

(2) Kinship care describes an arrangement where a child is raised by a friend, relative or extended family member other than a parent.

(3) Subsections (3) to (8) set out the arrangements that are recognised as being types of kinship care.

(4) An arrangement where a child is adopted (within the meaning of Chapter 4 of the Adoption and Children Act 2002) by a friend, relative or extended family member (‘kinship adoption’).

(5) An arrangement where—

(a) a child is looked after by a local authority (within the meaning of section 22 of the Children Act 1989), and

(b) a friend, relative or extended family member of that child is approved by the local authority to be a foster carer for that child (‘kinship foster care’).

(6) An arrangement created by a special guardianship order pursuant to section 14A of the Children Act 1989 (‘special guardianship’).

(7) An arrangement created by a child arrangements order pursuant to section 8 of the Children Act 1989 where the court orders that a child is to live predominantly with a friend, relative or extended family member of that child (‘kinship child arrangement’).

(8) An arrangement where a child is fostered privately (within the meaning of section 66 of the Children Act 1989) by a friend or extended family member (‘private fostering arrangement’).

(9) Any other arrangement where a child is cared for, and provided with accommodation in their own home—

(a) by a relative of the child, other than—

(i) a parent of the child; or

(ii) a person who is not a parent of the child but who has parental responsibility for the child; and

(b) where the arrangement has lasted, or is intended to last, for at least 28 days (‘private family arrangement’).”

This new clause is linked to the new clause about kinship care leave.

New clause 45—Foster carer’s leave—

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

(2) In the title of Part 8B, for ‘CARER’S LEAVE’ substitute ‘CARER’S LEAVE AND FOSTER CARER’S LEAVE’.

(3) After section 80J (Carer’s leave) insert—

‘80JA Foster carer’s leave

(1) The Secretary of State must make regulations entitling an employee to be absent from work on leave under this section in order to undertake activities as a result of being a local authority foster parent.

(2) For the purposes of subsection (1), “local authority foster parent” is defined in accordance with section 105 of The Children’s Act 1989.

(3) The regulations must include provision for determining—

(a) the extent of an employee’s entitlement to leave under this section;

(b) when leave under this section may be taken.

(4) Provision under subsection (3)(a) must secure that where an employee is entitled to leave under this section the employee is entitled to at least a week’s leave during any period of 12 months.

(5) The regulations may make provision about how leave under this section is to be taken (including by providing for it to be taken non-continuously).

(6) The regulations may provide that particular activities are, or are not, to be treated as providing or arranging care for the purposes of this Part.’

(4) In section 80K—

(a) in subsection (1), after ‘80J’ insert ‘and 80JA’;

(b) in subsection (2), after ‘80J’ in both places it occurs insert ‘and 80JA’;

(c) in subsection (4), after ‘80J’ insert ‘and 80JA’; and

(d) in subsection (5), after ‘80J’ insert ‘and 80JA’.

(5) In subsection (1) of section 80L, after ‘80J’ insert ‘and 80JA’.

(6) In section 80M—

(a) In subsection (1)—

(i) in the opening words, after ‘80J’ insert ‘80JA’,

(ii) in paragraph (e), after ‘80J’ insert ‘and 80JA’

(iii) in paragraph (f), after ‘80J’ insert ‘and 80JA’

(iv) in paragraph (g), after ‘80J’ insert ‘and 80JA’

(v) in paragraph (h), after ‘80J’ insert ‘and 80JA;’

(b) In subsection (2), after ‘80J’ insert ‘and 80JA’; and

(c) In subsection (3), after ‘80J(4)’ insert ‘and 80JA(4)’.”

This new clause ensures local authority foster parents are entitled to at least one extra week’s leave every 12 months.

--- Later in debate ---

[Steve Darling]

Apologies, Ms Vaz; I was somewhat premature on the previous item. I pay tribute to my hon. Friend the Member for Twickenham, who has highlighted this matter and proposed this new clause on kinship care. The kinship care APPG discussed this proposal and was mostly in favour of it.

The number of children in our United Kingdom who benefit from kinship care is 130,000—equivalent to the population of Colchester or Watford. That is three times more than the number of youngsters who benefit from fostering, which is where one imagines, and one would hope, most youngsters in need of support would get it. The new clause, by allowing additional leave, would allow greater flexibility to get those youngsters into the family, and would help families come to terms with, and settle into, kinship care.

There are eye-watering costs in the care system. Some companies are making outrageous profits from family breakdown. I encourage Members to think about how we can reshape society to give more support. As somebody who has adopted myself, adoption and fostering are matters very close to my heart, and I would strongly welcome more opportunities for kinship care.

Equally, new clause 45, which would provide for an additional week of unpaid leave for foster carers, is extremely important. We need to change the workplace so that it supports foster families and kinship care families, making sure that, the vast majority of the time, the best place for a child is within a loving family home—whatever shape or form that takes—rather than in a care home or similar place miles away from home.

This collection of proposals would help to drive the agenda to change our culture in the UK and support young people in loving homes, with families.

[Greg Smith]

I preface my comments by saying that I welcome anything that supports kinship carers. I had an inspirational meeting with a constituent who is a kinship carer over the summer, which certainly opened my eyes to many of the challenges faced by those who take on the heroic and wonderful mission in life of looking after those young people.

New clause 14 sets out an entitlement to kinship care leave. That in its own right seems to me a very good, sensible and noble proposal. Where the clause falls a little short is that it appears to be very trusting of the Government. Some on the Committee might think that is equally a very sensible and good thing, but obviously Governments come and go. Anything set out in any legislation that leaves things open also leaves them open to misinterpretation and the risk that they will not necessarily deliver that which was intended.

The entire eventual policy that new clause 14 would enable would be left up to Ministers, including the extent of an employee’s entitlement to leave, when leave may be taken and much more. I wonder whether the Liberal Democrats have a policy position on those matters; if they do, it seems rather trusting to just leave it up to the Government to determine, rather than setting it out in the new clause.

New clause 15 defines what is meant by kinship care. There is some confusion here, because the Government have set out their definition of kinship care in the Children’s Wellbeing and Schools Bill, which specifies that a child is in kinship care if

“the child lives with a relative, friend or other person connected with the child for all or part of the time”,

or if the child lives with that person

“for all of the time, or for more time than the child lives with a parent”,

and that person provides

“all of the care and support provided for the child, or more of that care and support than is provided for the child by a parent.”

A child is also in kinship care if the child lives with two or more relatives, friends or other persons

“all or most of the time (whether or not the child lives with those persons at the same time)”,

and

“those persons, taken together, provide all or most of the care and support provided for the child.”

That definition was introduced after new clause 15 was tabled, so it would be interesting to know whether there are aspects of the Government’s definition that the Liberal Democrats support, or whether they prefer their own, and why. It seems to me that, now there is live Government legislation in this area providing a perfectly good and well-meaning definition of kinship care, we do not need the new clause.

New clause 45, on additional leave for foster carers, would ensure that local authority foster parents are entitled to at least one extra week’s leave every 12 months. I would be interested to know whether the Liberal Democrats have undertaken any assessment of how businesses would be able to absorb the additional cost. That is not to say that we necessarily oppose the principle, but again, like with new clause 13, it would be important to know, before we could formally support any such change—well-meaning as it might be—whether that research has been done to understand the cost to business.

--- Later in debate ---

I thank the hon. Member for Torbay for his continued important advocacy for all families, including foster and kinship families. The Government remain committed to supporting all working families. On that basis, I ask the hon. Member not to press new clauses 14, 15 and 45 to a vote.

[Steve Darling]

I thank the Minister for that reassurance. In the light of that, I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 19

Consultation on trade union legislation

“(1) The Secretary of State must initiate a consultation on—

(a) the operation of the Trade Union and Labour Relations (Consolidation) Act 1992; and

(b) the effects on that operation of provisions contained in Part 4 of this Act.

(2) The Secretary of State must lay before each House of Parliament, no sooner than eighteen weeks after the initiation referred to in subsection (1), a report on—

(a) the outcome of that consultation, and

(b) the Government’s proposals for changes to the legislation referred to in subsection (1).”—(Greg Smith.)

This new clause requires the Secretary of State to undertake a consultation on the operation of trade union legislation, and see also Amendment 116.

Brought up, and read the First time.

[Greg Smith]

I beg to move, That the clause be read a Second time.

Employment Rights Bill (Seventeenth sitting)

Steve Darling Excerpts

Committee stage
Thursday 9th January 2025 Public Bill Committees

[Greg Smith]

A lot of the detail is in the clauses that follow this one; as the Minister said, this is very much a building-block clause. Although I totally understand and appreciate the rationale for taking enforcement powers that are currently fragmented across multiple different agencies and consolidating them into one, the devil is always in the detail.

Although it might seem sensible to consolidate the powers that are currently so spread out into one agency, this is very much a centralisation of power. The crux of clause 72 is about directly providing the Secretary of State with the overall function of enforcing labour market legislation. Whenever I see such provisions in any legislation, I cannot help but be reminded of the late, great President Reagan’s famous quote about the nine most terrifying words in the English language:

“I’m from the Government, and I’m here to help.”

As my hon. Friend the Member for Bridgwater suggested in his intervention on the Minister, the serious detail is about the practical workings of the fair work agency as it is set up. What will be the total number of enforcement officers, employees and ancillary staff required—admittedly, some will be brought across from other agencies—to form it? What will be the cost to the taxpayer of putting that together? How many people are we actually talking about? I think that, as opposed to the powers that they will hold, was the crux of my hon. Friend’s intervention.

As I said, we accept the rationale for bringing these powers together under one agency, but whenever such powers are granted to a Secretary of State, no matter what the field, there is always uncertainty and scope for never-ending expansion of the new agency, and of the size of the state, to do what is, in many cases, important enforcement work—I do not doubt that. Given the presumption that the Bill will become an Act of Parliament and that the agency will be set up in the way envisaged in clause 72, it would be good to have clarity about the plan for just how big the agency will be and whether the Secretary of State will put any cap on that from the get-go. How far does the Minister envisage the agency going?

[Steve Darling (Torbay) (LD)]

It is a pleasure to work under your chairmanship, Mr Mundell. I broadly welcome the bringing together of powers under the fair work agency. I note that the Secretary of State is due to publish an annual report, but I am sure that businesses in Torbay would be interested to know where in the Bill the critical friend is to hold the Secretary of State to account and ensure that they are being light of foot and driving the agenda we all want to see in this area, so I would welcome the Minister’s sharing that.

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

As is customary, I draw the Committee’s attention to my declaration in the Register of Members’ Financial Interests. I am a member of the Union of Shop, Distributive and Allied Workers and the GMB.

I warmly welcome this clause and the subsequent clauses, and the establishment of the fair work agency. I remind the Committee of the evidence we heard of the broad support for the agency, including from Helen Dickinson, the chief executive of the British Retail Consortium, who said:

“I think everybody is supportive of and aligned on proposals like a single enforcement body.”––[Official Report, Employment Rights Public Bill Committee, 28 November 2024; c. 99, Q95.]

Jamie Cater, the senior policy manager for employment at Make UK, said:

“The important thing for levelling the playing field is the fair work agency, and making sure that we have an approach to enforcement of labour market policy and regulation that is properly resourced and does have that level playing field.”––[Official Report, Employment Rights Public Bill Committee, 26 November 2024; c. 54, Q53.]

Jim Bligh, the director of corporate affairs for the Food and Drink Federation, said:

“For me, it is about enforcement and having a really strong, well-resourced enforcement agency.”––[Official Report, Employment Rights Public Bill Committee, 26 November 2024; c. 55, Q53.]

--- Later in debate ---

[Greg Smith]

Yes, Mr Mundell. I am genuinely struggling to find the connection between my questions in transport orals this morning on sustainable aviation fuel and this Bill. I will gladly offer to have a coffee with the hon. Member for Birmingham Northfield to discuss my passionate view on synthetic fuel in the future, but it really is not relevant to this Bill.

I accept the hon. Gentleman’s latter point, about previous reviews, but new clause 23 is specifically looking at the creation of this new body and is about ensuring that that is the right thing to do and that the cost of it will actually bring the benefit that the Minister and other Government Members have explained that they believe it will. It is incumbent on all of us, whether we sit on the Government or Opposition Benches or for the smaller parties, that we challenge everything put in front of us. Any culture in any organisation that does not challenge what is put in front of it is often weaker for it. That is what new clause 23 is seeking to do.

Inherent in that, notwithstanding the Taylor review, is the aim to ask and double-check whether the rationale takes into account how effectively labour market legislation is currently being enforced and understand what research this Government—not former Governments, but this one—have undertaken on what will be done more effectively or efficiently with the creation of this new body. We would like the Government to assess how effectively the labour market legislation that will be enforced by the new body is currently working in that fragmented sense that the Minister spoke about earlier, and how effective the enforcement of it is, before setting up any new quango.

Generally speaking, new quangos fill me with dread and fear, but this one may be worth while. However, we need the evidence. Will the Minister expand on how matters will change for businesses through the new labour market enforcement authority? What will feel different for them and what changes might they need to make as they prepare for it? New clause 23 tries to get to the heart of that.

[Steve Darling]

I know from my surgeries and casework in Torbay that discrimination is sadly alive and well. I ask the Minister to reflect on some of the evidence from the Equality and Human Rights Commission, which talked about the provision leading to fragmentation and the possibility of some of its standard work falling between two stools. What reassurances can the Minister give that the good work will proceed appropriately either through the fair work agency, or in a partnership approach with the Equality and Human Rights Commission?

[Sir Ashley Fox]

I want to speak in support of new clause 23 and to ask the Minister whether he is familiar with Parkinson’s law. It states that the number of workers in any public administration will tend to grow over time, regardless of the quantity of work done. The corollary is that work expands to fill the time available for its completion.

Although Conservative Members are in favour of the creation of the fair work agency, there is a risk that, over time, it will seek to have more staff and more power, will consume a great deal more of taxpayers’ money and resources, and will impose more on employers’ time, without great result. That is why a review is necessary. We want to ensure that any new authority is lean and efficient. We also want the Government to take the same approach to regulations.

Unfortunately, the Bill is a hefty document. It will impose £5 billion-worth of costs on employers, which will probably result in fewer people being employed, higher inflation and lower growth. It is therefore perfectly reasonable for the Opposition to ask the Government to reflect after 18 months and ascertain whether they can find anything in this weighty tome that they could do better or more efficiently.

The working time directive is immensely complicated and imposes burdensome record keeping on employers. In the past, it has resulted in retained firefighters in rural areas having to count the time when they sit at home, not doing anything, as working time. It has been a difficult and troublesome measure, and perhaps my party should have done more to simplify it when we were in office, but that is not an excuse for the Government to say, “Because you didn’t do enough, we intend to do nothing.” It is reasonable for us to ask the Government, at the end of 18 months, to take another look and see whether they can do anything to reduce the burden on businesses.

--- Later in debate ---

[Greg Smith]

On the face of it, the clauses are not problematic: they are quite clear, and it is important that those things that are considered as enforcement functions are clearly defined. That is all well and good—until we get to clause 74(5), which states:

“Arrangements under this section do not prevent the Secretary of State from performing a function to which the arrangements relate.”

Therefore, a body with certain powers—admittedly in the Secretary of State’s name—is created; essentially, a quango is put in place, and people are given the clear job of carrying out the enforcement functions in the Bill. However, if the Secretary of State is not prevented from performing one of those functions, what is the mechanism by which they can overrule the quango they themselves set up to perform them? Of course, the ultimate buck must stop with the Secretary of State, but it is a pretty established convention that where a quango is set up and has powers delegated to it—I think of Natural England within the Department for Environment, Food and Rural Affairs and many other quangos—it is very rare for a Secretary of State to intervene, overrule and perhaps come to a different conclusion from that quango.

We will not oppose the clauses, but I would be grateful if the Minister could reflect on the circumstances in which he believes clause 74(5) would come into effect, to make clear the procedures a Secretary of State would need to follow to bring that subsection into effect.

[Steve Darling]

I broadly welcome the proposals in the clauses, and I look forward to the Minister’s explanation of the issues outlined by the shadow Minister.

--- Later in debate ---

[Greg Smith]

I understand the hon. Gentleman’s point. I believe in freedom; I have no problem with any hon. or right hon. Government Member being a member of a trade union. The point here is clarity and transparency. We have a Bill in black and white in front of us that refers to equal numbers but fails to define whether a member of a trade union could sit as an independent expert or would have to be categorised under subsection (4)(a) as representing the interests of trade unions. This is a matter of information on which the Committee and the general public deserve to have clarity before we allow this clause to become part of primary legislation in our country. As in all walks of life, there will be points of debate on that. I want to hear from the Minister’s own mouth whether he deems it to contradict the “equal number” provision. We could dance on the head of a pin all day, but when we are seeking to pass legislation, clarity is very important, and I look to the Minister to give it.

[Steve Darling]

I am concerned about the heavy weather that colleagues on the Opposition Benches are making of this. For me, this measure is about driving a positive culture in employment, and the board’s balance is entirely appropriate. I welcome the clause.

[Sir Ashley Fox]

I have a number of concerns about the establishment of the advisory board for the enforcement of labour market rules. I do not believe that such an advisory board is necessary and I am convinced that its creation would represent an expensive and bureaucratic exercise that would be redundant at best and a tool to disguise the Government’s intentions behind a veil of unnecessary consultation at worst. Let me explain why.

Let us first address the central issue: the need for advice. It is not as if there is a shortage of expert opinions on labour market matters; far from it. If the Secretary of State is seeking guidance from trade unions, he need look no further than the extensive and loud representation of trade union interests on the Benches behind him. There seems to be no shortage of trade union representatives in key positions, be it MPs with close ties to the unions or those with—

Employment Rights Bill (Eighteenth sitting)

Steve Darling Excerpts

Committee stage
Thursday 9th January 2025 Public Bill Committees

[Greg Smith (Mid Buckinghamshire) (Con)]

It is good to see you in the Chair, Sir Christopher. Clauses 76 and 77 are relatively straightforward. Quite rightly, as is standard in similar legislative provisions, they state explicitly that both the strategy, every three years or so, and the annual report, every year, should be laid before Parliament. That is welcome: it is standard and is in no way under question.

If the Minister is agreeable to it, I would like him to confirm that Members of both Houses will be given the chance to question and debate the documents—certainly the strategy, which is an important document on a longer timescale—rather than their just being laid before the House. Although it would be unusual to specify that in the Bill, will he confirm that when the first strategy is published under clause 76 or the first annual report is published under clause 77, his expectation is that Ministers will be willing to make an oral statement so that the House can properly question it and scrutinise the Secretary of State, or whichever Minister draws the short straw and presents it to the House?

When documents are simply laid before the House, sometimes these things get overlooked. Select Committees sometimes have too much work in their programme to squeeze in a scrutiny session around the publication of such documents; sometimes the House of Commons sees only a written statement. It would be sufficient if the Minister confirmed that his desire is to see these documents not simply laid before Parliament, but actively debated, at least through the means of an oral statement.

[Steve Darling (Torbay) (LD)]

It is a pleasure to serve under your chairmanship, Sir Christopher. On behalf of my residents in Torbay, whether they are employers or workers, a strategy to know how the Government are looking to drive this agenda forward can only be welcomed.

[Justin Madders]

I think there is broad support for these clauses. The shadow Minister requests that I commit to an oral statement, but he will be aware that I am not in control of the business of the House. I hope that we would want to ensure that all Members have the opportunity to ask questions, but he will know that a number of other mechanisms—sorry, I am sounding a bit like the Leader of the House now—are available to Members to ensure that particular matters are debated.

--- Later in debate ---

[Greg Smith]

I broadly accept the Minister’s argument on bringing legislation into the 21st century, and it would be foolish not to acknowledge changes in the way that documents are stored or the fact that certain businesses operate online in a way that they simply did not when the existing legislation was passed. We do not seek to object to that element.

When expanding any power of any enforcement officer under the state, however, there is always a concern to best ensure that the checks and balances that any reasonable person would expect are there. The Bill will undoubtedly become an Act, so I gently ask the Minister how, when these powers are delegated by the current or any future Secretary of State to the enforcement body, the practical application of the use of those powers—particularly those that are a step into the unknown regarding online and electronic document storage—will be assessed and reviewed to check that the right delegations are in place, and that there is no overstretch or unnecessary steps to demand documents that may not be required.

We can all imagine a situation in which, because documents are held in electronic form, some enforcement officers might desire to be over-zealous and ask for far more than they need. I do not see a safeguard to ensure that enforcement officers ask only for things that they categorically and absolutely need within the function of the duties that this or any future Secretary of State delegates to them.

[Steve Darling]

It is important that we hear from the Minister about getting the balance right and supporting people’s rights, while not being too invasive to businesses. I look forward to hearing from him.

[Justin Madders]

Fair points were made by the Opposition spokespeople. Clearly, the Secretary of State is ultimately responsible to Parliament for the operation of the fair work agency and the use of powers by enforcement officers. I expect that will ensure that there is oversight at least on a parliamentary level. On an operational level, there will also be an opportunity for the advisory body to be involved.

On the modernisation of the rules, I understand that that applies only to the employment agency standards inspectorate, because the other bodies already have those powers. It is not a dramatic extension of the existing powers that are already in place.

Question put and agreed to.

Clause 78, as amended, accordingly ordered to stand part of the Bill.

Clause 79

Power to enter business premises in order to obtain documents, etc

--- Later in debate ---

[Greg Smith]

His Majesty’s loyal Opposition do not object to the thrust of the clauses, particularly the provision about not retaining a physical document if taking a photograph or making a copy of it is practicable. I do not want anyone to misinterpret what I am saying, but although I recognise the need for enforcement agencies to be able to acquire the evidence and documents they need to conclude their right and proper investigations, the question arises, how long may evidence be held by the enforcement agency, or indeed any part of the British state, particularly in cases in which a physical document has not been retained but a photograph or a copy has been taken of it? Clause 81 is pretty explicit about the retention of physical documents, but it is less clear on how long a copy or a photograph may be held by any arm of the state. I look for reassurance from the Minister that the rules will apply to copies as much as to the original documents seized, taken or willingly given to the enforcement officers.

[Steve Darling]

I broadly welcome the way forward proposed in these clauses.

[Justin Madders]

I hope that I can put the shadow Minister’s mind at rest. My interpretation of the provisions of clause 81(2) are that they would apply equally to the provisions of clause 81(3) and that copies would be retained only for as long as necessary for the purposes set out in subsection (2). I will write to him if my understanding is incorrect, but I believe that the legislation is fairly clear on that point.

Question put and agreed to.

Clause 80 accordingly ordered to stand part of the Bill.

Clause 81 ordered to stand part of the Bill.

Clause 82

Powers of enforcement officers under Police and Criminal Evidence Act 1984

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

--- Later in debate ---

[Greg Smith]

I heard what the Minister said, and these are indeed relatively minor amendments that do make sense. Amendment 92 enables an enforcement officer entering a premises with a warrant under clause 83 to exercise the same powers to inspect, examine and seize documents as would be exercisable if the officer had entered the premises in reliance on the power conferred by clause 79. Amendments 93 and 95 largely build on that. While we accept the spirit and the letter of the amendments, which all make sense, I cannot pass up yet another opportunity to wonder why they were not in the Bill in the first place.

[Steve Darling]

I welcome the further clarity that the amendments offer.

Amendment 92 agreed to.

Amendments made: 93, in clause 83, page 85, line 11, after “any” insert “other”.

This amendment is consequential on amendment 92.

Amendment 94, in clause 83, page 85, line 15, leave out subsection (5).

This amendment is consequential on NS1.

Amendment 95, in clause 83, page 85, line 24, leave out from beginning to “may” in line 26.

This amendment is consequential on amendment 92.

Amendment 96, in clause 83, page 86, line 3, at end insert—

“(10) For further provision about warrants under this section, see section (Warrants) and Schedule (Warrants under Part 5: further provision).”—(Justin Madders.)

This amendment is consequential on NC9 and NS1

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

[Justin Madders]

The clause is an essential measure that empowers enforcement officers to enter premises, including by force if necessary, when investigating unlicensed gang- masters activity under the Gangmasters (Licensing) Act 2004. It carries over the existing powers of the Gangmasters and Labour Abuse Authority and brings them together with the other enforcement powers of the fair work agency. It enables officers to gather necessary evidence when there is a reason to suspect illegal labour practices and is a vital step in protecting vulnerable workers from exploitation. It ensures that enforcement officers can conduct thorough investigations to uphold fair labour practices without delay. As at present, enforcement officers will need a warrant to exercise this power.

The clause supports a co-ordinated approach to labour enforcement by integrating the functions of the Gangmasters and Labour Abuse Authority into the fair work agency. We are amending the clause as discussed and introducing a new schedule so that the process of applying for and executing a warrant mirrors that in clause 79, to create a single system of enforcement across the employment rights landscape. I commend the clause to the Committee.

--- Later in debate ---

[Greg Smith]

I will focus most of my comments on clause 87, on the means of giving notice under the provisions of clause 84. I think we can all fully understand what clause 87(1) means by

“(a) delivering it to the person,

(b) leaving it at the person’s proper address,

(c) sending it by post to the person at that address”.

However, there is some potential for confusion—and a need for greater clarity, be that in advice, notes after the Bill becomes an Act or perhaps more formally during the passage of the Bill—regarding what precisely we mean by “electronic means”. Subsection (8) states:

“‘electronic address’ means any number or address used for the purposes of sending or receiving documents or information by electronic means”.

As Members of this House, we all sometimes have constituents who use all manner of extra means to try to get messages through to us, particularly with the growth of different social media channels and direct messaging. Most reasonable people still define “electronic means” as what is now probably the old-hat electronic means: published email addresses and perhaps text messages via mobile phones, WhatsApp and similar messaging platforms. Some businesses have websites that make it quite difficult to contact the business by means other than a website contact form, or perhaps their only published contact details are via social media channels.

Without wanting to get too detailed and specific, I think it would be welcome if the Minister could—this afternoon would be great, but certainly at some point before the Bill becomes an Act—double-check with the Department and his legal advisers whether things such as Instagram direct messages would count as “electronic means” under the clause. It is very easy—I am guilty; I have done it with some messages—to miss a message that does not come via the expected channels, such as published email addresses, postal addresses or whatever it might be. With social media channels—I have certainly found this with Instagram—it is sometimes very easy for legitimate constituent messages to find their way into junk folders, which are far less straightforward than our inboxes.

If the notices may be issued via those slightly less obvious electronic channels, can we have clarity on that? What safeguards will be put in place to get around the chance of a notice going into some sort of electronic trap—a junk folder, spam folder or whatever it might be—so that the enforcement body can have confidence that the notice it has served has reached the intended recipient? I suppose that these days the same point would apply to the postal method of delivering a notice—we all know that postal deliveries are not as frequent as they used to be—so if such notices are not going to be sent via some form of signed-for or special delivery, how can there be confidence that any notice served under clause 87 has reached the business owner or the director against whom enforcement action is being considered? Clarity is key here.

[Steve Darling]

I welcome the points made by the shadow Minister, and wait eagerly to hear from the Minister.

[Justin Madders]

I am grateful for the general support. The shadow Minister has raised some fair questions and articulated the frustration we all feel when trying to deal with certain organisations. I know it is a Thursday afternoon, but I could talk for some time about how my satellite TV provider has proven quite elusive when I have tried to speak to an individual.

I think I can put the shadow Minister’s mind at ease on this issue. Clearly, the purpose of the undertakings is to encourage compliance, so an undertaking will not appear out of thin air, but will be the result of an ongoing conversation between the employer and the fair work agency. Clause 87(6) specifies that notices or undertakings can be sent by electronic means only if

“the person has indicated that notices under section 84 may be given to…an electronic address”

and in a particular format, so there is already a safeguard in the Bill to ensure that those messages do not go missing. The whole purpose of an undertaking is that there is an agreement between both parties that there will be compliance, so it would not be in the fair work agency’s interest to send things to addresses or places where it was not confident that they would be received. It is all about encouraging compliance, and that is the purpose of the clauses we have just debated, so I commend them to the Committee.

Question put and agreed to.

Clause 84 accordingly ordered to stand part of the Bill.

Clauses 85 to 87 ordered to stand part of the Bill.

Clause 88

Power to make LME order on application

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

Employment Rights Bill (Sixteenth sitting)

Steve Darling Excerpts

Committee stage
Tuesday 7th January 2025 Public Bill Committees

[Greg Smith]

I am grateful to the hon. Gentleman for bringing that up. He has clearly been doing his homework and researching the wonderful transcripts from my time on that local authority. I have some very happy memories of it—I remember cutting council tax by 20%, which I am very proud of—but he is really going to stretch my grey matter if he wants me to remember that particular motion. However, I am certainly of the view that it is not for taxpayers to fund trade union activities; it is for trade unions to meet their own costs. It is for trade unions, just like any other body, not to require taxpayer subsidy or the state to step in and help them meet their costs. I certainly remember campaigning on the expansion of facility time back then, with many across the Conservative party. From memory, my right hon. and noble Friend Lord Pickles took a particular interest in the issue.

My direct answer to the hon. Gentleman’s question is no: taxpayers should not be funding trade union facility time. That is for the trade unions themselves to fund out of their membership fees and other income streams, where they have them, so that they can go about doing their work. I repeat that it is really not for taxpayers to fund that. There needs to be wider reform to protect taxpayers from indirectly—or directly, in this case—funding third-party organisations such as trade unions.

We have to consider the extra burden to employers in the round. Along with other elements of the Bill, such as the provisions on unfair dismissal, and the growth-stunting hike to employers’ national insurance contributions in the Budget, this is another straw that may yet break the camel’s back for a number of businesses. The Government are carelessly piling cost and red tape on employers with this Bill and other measures, and are just expecting those burdens to be absorbed. We would like to be reassured that it is possible to find a better way that does not burden the taxpayer or private businesses with the provisions that we find in this Bill. We have tabled these amendments to rectify that and to put those protections in place.

[Steve Darling (Torbay) (LD)]

Happy new year, Sir Christopher. I have a small amount of sympathy with the shadow Minister—I understand the cost to business, so I welcome that element of the amendments—but I have great fears. One need only have listened to the radio this morning to have heard about the issues for McDonald’s workers that have not been sorted out. I accept that that is the private sector, and the amendments are about the public sector, but it demonstrates that if equalities issues are not taken seriously in the workplace, it can cause major harm to employees and to the culture of improvement that we need to see.

[Greg Smith]

Nobody is suggesting that equalities issues should not be taken seriously. The point that I was making about our amendments is that the law is already very clear about equalities, and employers should be held to that law. There is no need to place this additional burden on the public sector or the private sector. Equalities are incredibly important—nobody in the Opposition is denying that—but we must find the right vehicle to ensure that equalities duties are enforced. This Bill is not it.

[Steve Darling]

I am concerned that the hon. Gentleman is taking a Panglossian approach that all in the world is perfect. It is far from perfect, which is why I welcome large tracts of the Bill, as long as we are supporting employers on the journey.

[Sir Ashley Fox (Bridgwater) (Con)]

It is good to see you in the Chair, Sir Christopher.

I rise to speak in support of Opposition amendments 113 to 115 and new clause 18. These are modest proposals to ameliorate the additional costs and burdens that the Bill is will place on employers and the public sector. It seems extraordinary that the Government want to introduce this new facility time without any thought about what the cost will be. It strikes me that the measures the Government are bringing forward are simply a bung to their trade union friends to provide extra money to employ extra trade union officials to do work that genuinely does not need doing.

The law is clear and should be enforced. We do not need the state to impose further burdens by employing trade union officials to effectively double up as Government inspectors. I shall therefore support the amendments and vote against the Government’s new clauses. A pattern is being followed through this Bill, whereby Ministers rise and say that each individual proposal is reasonable and modest, yet each one is an additional burden on the taxpayer and/or employers. The net result is £5 billion in additional costs, which will make this country less competitive, efficient, and effective.

--- Later in debate ---

[Greg Smith]

This is one of the less contentious clauses in the Bill. The Minister is right to say that something that has not been updated for a decade probably should be looked at again, especially in the light of some of the technology that we see emerging. We will not oppose clause 53 standing part of the Bill.

[Steve Darling]

I strongly welcome this modernisation of approach.

Question put and agreed to.

Clause 53 accordingly ordered to stand part of the Bill.

Clause 54

Industrial action ballots: turnout and support thresholds

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

[The Chair]

With this it will be convenient to discuss the following:

Clauses 55 and 56 stand part.

New clause 32—Workplace intimidation in regard to balloting—

“(1) The Employment Relations Act 2004 is amended as follows.

(2) After section 54 (12) (c) insert—

‘(d) measures are in place to prevent workplace intimidation.’”

This new clause requires the Secretary of State to consider whether there are sufficient measures to be in place to prevent workplace intimidation before they make any order to allow balloting to take place by a means other than by postal ballot.

New clause 33—Balloting in the workplace—

“(1) The Employment Relations Act 2004 is amended as follows.

(2) After section 54 (12) insert at end—

‘(12A) No order may be made under this section that would permit balloting to take place in the workplace.’”

This new clause would prohibit the Secretary of State from making an order to extend the means of voting in trade union ballots and elections that would allow the ballot to be held in the workplace.

New clause 43—Industrial action: impact assessments and family tests—

“In Part V of the Trade Union and Labour Relations (Consolidation) Act 1992, before section 234A (and the italic heading before it), insert—

‘Industrial Action: impact assessments and family tests

234ZA Impact assessments and family tests

(1) No ballot for industrial action may take place unless the trade union has taken the following steps—

(a) published a report containing an economic impact assessment of the industrial action;

(b) published a report containing a family test on the impact of the industrial action; and

(c) informed members of the trade union of the publication of reports required under paragraphs (a) and (b).

(2) For the purposes of this section, a “family test” is defined as an assessment on the impact of industrial action on family relationships.’”

This new clause would require trade unions to carry out an impact assessment and a family test, for the reports of these to have published, and trade union members informed of their publication, before a ballot for industrial action can take place.

--- Later in debate ---

[Greg Smith]

I hear the hon. Gentleman’s argument, but the proof of the pudding is in the eating. I gently ask him how a no-strings-attached bumper pay rise for the train drivers worked out in practice when it came to strikes over the Christmas period. We have heard repeatedly from Labour party politicians that they will prevent or stop strikes. The most visible example of that in our newspapers and on our television screens was the Mayor of London, who made some pretty bold promises about stopping strike action. Londoners and those coming into London for work, pleasure or hospital appointments have suffered multiple times during his tenure. I am not sure I fully accept the hon. Gentleman’s point that the Bill will somehow magically reduce the number of strikes, when the reality on the ground has been very different.

Given the prolonged and repeated strike action made easier by the Bill, it could almost certainly lead to large costs across the economy. We think it is only right that a level of transparency similar to that applied to Government Departments should be applied to trade union decisions. Trade unions should exercise some responsibility and consider the consequences of their decisions to undertake strike action. We would therefore like trade unions to assess the likely impact that their going on strike will have on real people and their lives, journeys, hospital appointments, theatre tickets, enjoyment, pleasure or whatever it might be that the strike action will prevent them from doing—and, of course, on our children’s education, which is so important.

New clause 43 would require trade unions to carry out impact assessments and family tests, to publish the reports of those, and to inform members of the trade union about their contents, before a ballot for industrial action can take place. It is hardly a controversial position that people should know what they are voting for before they are asked to cast a ballot on it, and that they should understand the consequences of the strike action not just for them, but for the wider economy and people’s health, education, and so much more across our great country. We think it is only right that trade union members should be fully informed of the consequences before they cast their votes. Such information would provide some public transparency about the cost and inconvenience that trade unions are willingly inflicting on the British public.

[Steve Darling]

I have some sympathy with the desire to understand the cost, but to me, the vast majority of the Government proposals before us today are about modernising the system appropriately. I am concerned that this afternoon we have seen the official Opposition one minute say that all in the garden is rosy and there is no need for equality, and the next flip over and catastrophise about the Government’s proposals. We need to get a firm hand on the tiller and see that the vast majority of these proposals simply entail modernisation. I welcome them.

[Justin Madders]

The shadow Minister asked why we cannot support new clauses 32 and 33. The simple answer is that there are already legislative protections in section 54(12) of the Employment Relations Act 2004, which sets out the conditions that must be adhered to in order to ensure that balloting is done in a secure and safe manner. He made some interesting points about people peering over others’ shoulders when votes are taking place. Clearly, his colleagues in the parliamentary Conservative party cannot be trusted to behave themselves when electronic voting takes place. That is something he will no doubt address with his colleagues in private.

If the shadow Minister is concerned about the impact of electronic balloting in all spheres—I am sure there are sometimes reasons in his own party to question the outcome of the electronic ballot—we can look at that, but there is already clear provision in law about how any trade union ballot is to be conducted. The working group will be considering that. If the Conservative party thought there were concerns about the use of electronic ballots for industrial disputes, they might not have commissioned the Knight review back in 2017 to consider the matter. That they did so suggests that they considered that it is right and appropriate that we modernise trade union practices to allow for electronic balloting for industrial action.

Moving on to the assessments the shadow Minister is requesting, the Government are pretty clear that, through new clause 43, the Opposition seek to add another administrative hurdle for a trade union that wants to take industrial action. There is no doubt that any such tests or assessments that were undertaken would lead to a multitude of satellite litigation, delay resolution of disputes, and divert both parties’ focus from resolving the disputes to arguing about impact assessments. I am not quite sure what the family test is. I think there is a family and friends test that some organisations use. It is a little vague. It is also unclear who would be the arbiter of whether these tests and assessments were being done sufficiently accurately. It is also fair to say that trade union members know, when they take industrial action, that there will be consequences. They are well aware. They do the job every day, they know the impact, and that is why they always take these matters very seriously.

The central point that the Bill will lead to more industrial action is counterintuitive, given that we are, in the main, reversing provisions of the 2016 Act. As we know, there has been more industrial action in recent years than there has been for decades. Perhaps there is not a cause and effect relationship between that and the 2016 Act, but I would suggest that the evidence points to it.

Question put and agreed to.

Clause 54 accordingly ordered to stand part of the Bill.

Clauses 55 and 56 ordered to stand part of the Bill.

Clause 57

Industrial action: provision of information to employer

Employment Rights Bill (Fifteenth sitting)

Steve Darling Excerpts

Committee stage
Tuesday 7th January 2025 Public Bill Committees

[Greg Smith (Mid Buckinghamshire) (Con)]

It is a pleasure to serve under your chairmanship, Mr Mundell, and I too wish you and all members of the Committee a very happy, prosperous and healthy new year. If only the optimism of that statement were matched by business confidence around the country as we start this new year.

I understand why the Government want to take this measure, and it is pretty clear that it will happen as part of the Bill. As the Minister prepares for the consultation that he spoke about, I ask him to reflect on how quickly we can give businesses certainty on the frequency with which they will have to remind their employees of their right to join a trade union. Of course everyone has a right to join a trade union—there is no issue with that—but this is yet another thing that HR departments of bigger businesses, and individual owners of smaller businesses, who have to do everything from the HR function down to replacing the loo roll in the toilets, will have to remember to do on a regular basis, and presumably they will face consequences if they do not. It might not seem onerous as we talk about it at half-past 9 on a Tuesday morning in Westminster, but once we start ratcheting up all these different things for businesses—particularly those very small businesses—to do, it will become a burden.

The other thing that I gently ask the Minister to consider as part of his consultation is this. Would it not be a fairer, more balanced and better way of doing things to have in the proposed statement, as well as a reminder to employees of their right to join a trade union, a reminder that they do not have to do so—that there is equally a right not to join a trade union if they do not wish to? It would be much more fair and balanced if the consultation focused on ensuring that both sides are equally reflected—yes, a reminder that there is a right to join a trade union, but equally, a reminder that there is no compulsion and no absolute, set-in-stone requirement to do so. If we could have that, the clause would be much more balanced.

[Steve Darling (Torbay) (LD)]

It is a pleasure to serve under your chairmanship, Mr Mundell. I wish all colleagues a happy and prosperous new year.

I welcome these proposals. Only this weekend, I was speaking with a constituent in Torbay who told me that the unit he worked in had transferred out of the NHS and been taken over by the private sector. He was gravely concerned about sharp practices that he saw being undertaken by the new employer. My best advice to him was, “Have you engaged with the trade union on site? How can the trade union help you? If I can do anything to assist the trade union, I stand ready to help.”

Trade unions are a force for good in the workplace, and many of the proposals that we will discuss today will put us mid-range in the OECD on trade union rights. Far from the extremism that the Conservatives are painting us into a corner with, these measures will actually put us back on an even keel as a nation in our relations with trade unions, rather than something like third or fourth bottom among OECD countries in the rights that we give unions.

[Sir Ashley Fox (Bridgwater) (Con)]

It is a pleasure to serve under your chairmanship, Mr Mundell, and I wish you and other colleagues a happy new year.

I want to follow on from the comments made by the shadow Minister, my hon. Friend the Member for Mid Buckinghamshire, and emphasise that the clause is completely pointless. Of course all workers have the right to join a trade union and the right not to join a trade union. Will the Minister outline the consequences for a small employer of not complying with the clause? Will there be a penalty? Will the employer be taken to a tribunal that can make a protective award? If there will not be a penalty, surely the clause is only performative, and just more evidence that the Government are doing what their trade union masters are telling them to.

Time and again in the Bill, we see measures that are small and inconsequential individually, but in total mount up to £5 billion of additional costs, most of them on small and medium-sized businesses. We see from surveys of business confidence that businesses are reeling under the imposition of additional taxes and of these rights, and the Government’s business-unfriendly stance. While the Minister talks about growth, the actions of his Government point to the very opposite. They believe that somehow they can regulate their way to growth. We start this new year with more regulation from the Government, none of which will contribute to the wealth and prosperity of our citizens.

--- Later in debate ---

[Greg Smith]

As the Minister clearly outlined, the requirement for a trade union to have a certificate of independence to have the rights provided for in clause 46 is a tidying up of the Bill. The Opposition are not entirely on board with the spirit of the Bill in this regard, but we welcome its being tidied up and the clarity that the amendments bring to what the Government are trying to do to prevent even more of a free-for-all in terms of access to workplaces.

I have said many times that it is a shame and regrettable that so many of these tidying-up amendments have had to be tabled. Welcome though they are in bringing certainty to businesses about the Bill’s core provisions, if we had not had that arbitrary 100-day deadline, we probably would not be spending our time going through these sorts of amendments, and could instead be debating much more of the substance of the Bill. As I say, the Opposition are not convinced about some of the core provisions of the Bill, but these particular amendments do at least tidy it up to some extent.

[Steve Darling]

I welcome the amendments. Driving our economy to achieve the productivity that we need must be a mission for all of us in this House. The culture in our businesses is really important, and I think the amendments will drive a positive working relationship between workers and bosses, so that we can see productivity enhanced across the United Kingdom.

[The Chair]

Minister, do you wish to say anything further?

--- Later in debate ---

[Greg Smith]

As the Minister said, Government amendment 80 clarifies that if circumstances are specified under new section 70ZF(4)(a), the effect of specifying those circumstances is that it is to be regarded as reasonable of the CAC to make a determination that officials of a union are not to have access, but does not require the CAC to make such a determination. Government amendment 81 would allow the Secretary of State to prescribe matters to which the CAC must have regard when considering an application for a determination about access. Therefore, these amendments set out that if the Secretary of State has specified circumstances in which it would be reasonable to decline union access to a workplace, the CAC must accept those circumstances.

That is all well and good, but the access principles, as they are set out, are incredibly broad and make it very difficult for an employer to refuse access. For example, subsection (2)(a) of new section 70ZF specifies that

“officials of a listed trade union should be able to access a workplace for any of the access purposes in any manner that does not unreasonably interfere with the employer’s business”.

That accepts that access can and should be allowed to cause interference, but what would count as unreasonable interference? Can the Minister give any concrete examples? How will businesses know what they are or are not expected to put up with in terms of inconvenience and disruption to their operations? This all seems to be still particularly woolly and ill-defined. It will cause a lot of headaches and a lot of businesses to scratch their heads to work out what they have to put up with, bear the burden of, or lose profit to in order to enable some of the access that the Bill determines will take place.

The circumstances in which it would be reasonable for officials of a union not to have access will be specified in future regulations, but this is an area where it is incumbent on the Government to be very clear—indeed, crystal clear—about where the Minister or the Department feels these regulations should sit, or the operating window in which they should sit, moving away from woolly language and into real practical detail to allow businesses to begin to prepare. Can the Minister give any examples of matters that might be specified by the Secretary of State to set some constraints on the access principles envisaged by the amendments? I know he will say that he wishes to consult, which is all very well and good, but as I said a moment ago, this is an area where I do not think businesses will simply accept the offer of future consultation; they will instead want an operating window with practical examples and very clear language about what the amendments envisage will happen in the future. It is just not good enough for us to be left in this position of trying to second-guess and wonder what things will be like when the consultation finally happens.

[Steve Darling]

I will be concise and echo the shadow Minister’s call for clarity.

[Justin Madders]

I acknowledge the points made by the shadow Minister, but of course, as he has already anticipated, my response is that all of that will be determined in secondary legislation following a consultation. That is the right approach. The sort of detailed questions he is rightly posing are best dealt with in secondary legislation and probably in codes of practice as well. That is the kind of detail that would not normally find its way into a Bill. Of course, for me to prejudge any consultation on the circumstances in which it may or may not be appropriate for unions to gain access would of course, be to predetermine the outcome of the consultation.

--- Later in debate ---

[Greg Smith]

As the Minister said, the amendment clarifies that the Employment Appeal Tribunal may dismiss an appeal under new section 70ZK(2) of the Trade Union and Labour Relations (Consolidation) Act 1992. Of course the Opposition agree that this amendment should be accepted and put into the Bill, but it beggars belief that the amendment was necessary in the first place. Of course the Employment Appeal Tribunal should be allowed to dismiss an appeal if it finds that to be necessary, but how on earth was a Bill put before this House of Commons—this Parliament—that only envisaged that the tribunal might quash the order or make an order requiring the person to pay a reduced amount to the CAC? How was this Bill introduced in a form in which the dismissal of an appeal was not even an option?

It is extraordinary that a Bill could have been allowed through the write-around process—the various processes that Government have—without this anomaly being spotted and rectified before the Bill was presented and had its Second Reading debate. I gently ask the Minister to reflect on that and go back through the Bill’s provisions to double-check for any other glaring omissions, which I am sure he never wished to see in the first place and is now correcting by the amendment in his name. Could he ensure that the Bill contains no more of these, frankly, howling errors that could cause so much damage?

[Steve Darling]

Bill Committees are here to check for snags in the final construction of legislation. I am pleased that this snag has been picked up and will be sorted out by this amendment.

[Justin Madders]

I am not sure that the shadow Minister wants me to check everything again, because it might lead to further amendments and we may have this debate repeatedly. I would gently push back on the suggestion that this is a “howling error”, as he described it. Of course, the Employment Appeal Tribunal already has the jurisdiction of the CAC to hear appeals. It is probably more a case of making sure it is clear that that applies to this particular provision rather than its being an oversight in the first place.

Amendment 82 agreed to.

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

--- Later in debate ---

[Greg Smith]

I do not wish to misrepresent the hon. Gentleman in any way, shape or form, but I return to my central argument. Although I entirely accept what he says—that there are examples of hostility—and I understand why the Government wish to take measures to overrule them, it is impossible to view clause 47 in isolation. It must be looked at as part of the package of measures in the Bill. If, having become law, they still fail at some future point to counteract the problems that he talks about, there is something much more fundamentally problematic occurring, which the clause alone would not solve. I therefore ask the Minister to reflect on how he envisages the other provisions impacting the need for the clause to be implemented in the first place, particularly if an already low threshold of 10% has the potential, under the Secretary of State’s direction, to become even more absurdly low by the test of reasonability and go down to 2%.

If Members were to go to the average high street to do one of those dreaded media-style vox pops and ask, “Is 2% a reasonable threshold to allow in any of these circumstances?” I think the general answer would be that 2% is absurdly low, and that 10% is already low enough. The test of public opinion is important. I dare say that many more consultations are to come, and it is important that they tease out what is reasonable and what is not.

[Steve Darling]

To me, the clause is all about resetting the culture within our employment world, and I welcome the proposals within it. It is about driving the partnership approach that we should have in the workplace. The more we can achieve that, the better for our economy.

[Laurence Turner]

In an earlier intervention, I failed to draw the Committee’s attention to my declaration in the Register of Members’ Financial Interests: I am a member of the GMB and Unite trade unions. There has clearly been some learning loss over the Christmas period.

I rise to make a couple of brief points. The shadow Minister said that 10% was not a high threshold. In one sitting before Christmas he encouraged us to listen to Tony Blair, the former Prime Minister; the debates that accompanied the Employment Relations Act 1999 make it very clear that 10% was put forward at that time precisely because it was a high bar for trade unions to meet. It has now been tested by time, and it is the case that for some high-turnover employers the 10% threshold is hard to meet in practice.

I take the point that there might be different views about whether employers’ approaches to trade unions tend to be genial and welcoming or hostile. As former trade union officials, we have had exposure to some of the most hostile employers. There is scope, where there is a limited number of employees who are known to the employer as individuals, to try to whittle down trade union membership to below the 10% threshold. I would also say that 2% is the threshold for the information consultation regulations, which I believe were introduced by the previous Government, so there is some precedent for that lower number.

Let me get to the heart of why we put forward this proposal. The introduction of a statutory recognition regime was an important step forward—we talked before Christmas about some of the historical injustices that gave rise to the regime as it exists today—but there are flaws within it and, where there are flaws, they must be remedied. I draw particular attention to the case of the Amazon Coventry warehouse site, where the GMB union fought a particularly difficult recognition campaign. Having successfully applied for the recognition campaign to start, it suddenly found that the bargaining unit was flooded with a number of new starters, who were very hard to reach in that recognition campaign. Some of that would be covered by the Bill as it stands.

On a related point, the code of practice on access and unfair practices in relation to recognition disputes at the moment does not apply from day one of an application, and I think it is important that that should be changed. This clause clearly contains important changes, however, that respond to some of the adverse and unfair practices that can occur during a recognition dispute. Some Committee members might want the clause to go further in some areas, but as it stands, it should be very strongly welcomed.

Harland & Wolff

Steve Darling Excerpts

Thursday 19th December 2024 Commons Chamber

[Madam Deputy Speaker (Ms Nusrat Ghani)]

I call the Liberal Democrat spokesperson, who has up to two minutes.

[Steve Darling (Torbay) (LD)]

This is an outstanding Christmas present for the 1,000 employees from Devon to the Isle of Lewis who will benefit from this decision and the deal that has been pulled off by the Government. In the west country, we have a low-wage economy, and in the Appledore dockyard, which is not too far from my constituency of Torbay, this will go down extremely well, so congratulations are in order. That is in sharp contrast with the failure of the previous Administration on implementing an industrial strategy, supporting our shipping industry and growing our economy over many years. The position that the Conservatives are taking now is utterly shameful. How can we hardwire that long-term support for our shipping industry so that we see growth in this area and support for industries such as steel manufacturing?

[Jonathan Reynolds]

I am extremely grateful to be able to deliver that outcome for the hon. Gentleman’s constituents as a result of the announcement. He is right to say that successful UK Government policy must be about more than one-off solutions to specific problems such as this. That is why we have adopted an ambitious industrial strategy that covers key sectors of the economy and delivers exactly what he has asked for: consistency, long termism, and policy that covers every aspect of government rather than being seen as led by one Department. When we get it right, good long-term and effective public policy—working hand in hand with the private sector—delivers tremendous outcomes for the country, and that is what we are seeking. Ultimately, any strategy is only as good as its delivery, and this statement is evidence that the Government will deliver.

Post Office Redress and Funding

Steve Darling Excerpts

Wednesday 18th December 2024 Commons Chamber

[Madam Deputy Speaker]

I call the Liberal Democrat spokesperson.

[Steve Darling (Torbay) (LD)]

I thank the Minister for sharing his statement in advance.

Honest, hard-working people had their lives totally wrecked by this scandal, and it is a great shame that it happened over a number of years, and that there was dither and delay over it for far too many years. I welcome the steps that he has outlined this afternoon. I welcome the suggestions made to him about an independent body for compensation. However, this scandal must never happen again. One way this Chamber could ensure that is the case is by having a duty of candour on officials, as the Liberal Democrats have called for. I hope he will give that serious consideration, to stop such a scandal ever happening again. Finally, there is a real opportunity, should the Government choose to take it, to set up an office for whistleblowers through the Employment Rights Bill, which is currently making its way through the House.

[Gareth Thomas]

I am grateful to the hon. Gentleman for his opening remarks. In particular, I share his anger, and that of the whole House, at how sub-postmasters were treated, whether as victims of the Horizon scandal or of the Capture software issues, which was clearly appalling. We must do everything we can to ensure that can never be repeated. He will understand that yesterday was the last day of hearings in Sir Wyn Williams’s inquiry. Sir Wyn Williams has said that he will publish his conclusions and recommendations within months. The Government will then work at pace to consider his recommendations and to publish our response within six months of that date. The specific ideas that the hon. Gentleman has referenced in that context will, I am sure, be part of the Government’s deliberations. He will forgive me if I wait at this stage for Sir Wyn Williams’s recommendations. We will then look at those recommendations and come to the House with the future steps we intend to take.

Employment Rights Bill (Thirteenth sitting)

Steve Darling Excerpts

Committee stage
Tuesday 17th December 2024 Public Bill Committees

[Greg Smith (Mid Buckinghamshire) (Con)]

It is a pleasure to serve under your chairmanship once more, Mr Mundell.

Clause 25 has got me thinking about many moons ago, in 2006, when I was part of the team that won Hammersmith and Fulham council for the Conservatives for the first time since 1968. One of our first acts was quite literally to take the red flag down from the roof of the town hall. Part of the symbolism of that, which is why I mention it, was that the council, in 2006, was one of the last to outsource anything at all. Competitive tendering simply had not happened in that London borough. Everything was still a direct service run by the local authority, and we set about contracting out waste, grounds maintenance and many other services. Why? Because we wanted to deliver better value for taxpayers—indeed, we cut council tax by 20% over the eight years that we ran the council—and to improve service standards.

One of the things I learned in that process, and the reason my point is relevant to the clause, is that the first iteration of any contracting out—that first contract, be it for refuse collection, street cleansing, grounds maintenance or whatever—does not tend to result in economies and improvements. It is often in the second or third contract iteration where the cost savings and improvements in service standards start to be seen. That is partly because of the TUPE provisions that rightly exist to ensure that those staff who are being transferred from whatever part of the public sector we might be talking about—in this case, local government—transfer with the same rights, terms and conditions, and pay that they had at the point that they ceased to be direct employees of the council, or whatever other public service, and became employees of whoever won the contract.

The rub comes in the real-world application. In such cases, the staff members who transferred are on favourable terms and conditions, and probably better pay, than some of the staff that the contractor brings into the team. If it is immediately locked in that everybody new has to be on the same terms and conditions and pay scales, we will never achieve value for money for taxpayers, and we will never enable the contractor, be that a refuse collection company or whatever, to find efficiencies and savings at the same time as increasing service standards in the way that we all want to see. It might as well never be done in the first place. That makes me question whether that is in fact the ideological position that the Government want to take. I can see the Minister grinning; perhaps I have hit upon something.

I gently remind the Committee of the time when every refuse service and local government service was provided directly, in house, before competitive tendering and the revolution of the 1980s and the Thatcher Government. We can all remember what delivery of those services looked like in the 1970s: the rubbish piled up on the streets with no one collecting it.

[Steve Darling (Torbay) (LD)]

It is a pleasure to serve under your chairmanship, Mr Mundell. I just reflect that when I was a unitary authority leader, we were effectively a hostage client of the private sector, since the previous Conservative authority had set up a joint venture with it. That was far from the land of milk and honey. Well, it was the land of milk and honey for the private sector, whereas local taxpayers had to suffer under a system that was set up to benefit the private sector. The reality is that often it is more appropriate for local authorities to run these services so that they are run in the interests of local communities rather than the profits of the private sector.

[Greg Smith]

The hon. Gentleman is clearly not of the orange book wing of the Liberal Democrats.

--- Later in debate ---

[Steve Darling]

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

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

[The Minister for Equalities (Dame Nia Griffith)]

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

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

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

--- Later in debate ---

[Steve Darling]

I beg to move amendment 162, in clause 26, page 38, line 35, at end insert—

“(c) supporting employees who provide or arrange care for a dependant with a long-term care need, as defined by the Carer’s Leave Act 2023.”

This amendment adds caring to the list of “matters related to gender equality”, on which regulations will require employers to produce an equality action plan.

This amendment relates to research showing that by the age of 46, 50% of women have taken on caring responsibilities, whereas the equivalent age for men is 57. Clearly, the impact of caring happens much sooner for women, and that is why it is appropriate to take carers into account under the equality action plan.

There are approximately 10.5 million carers in the United Kingdom, 2.6 million of whom work. That shows that a significant number of carers do not work. In an earlier debate I made the point about the pool of workers for whom there are opportunities in our workforce yet who are not able to access longer-term employment. I strongly contend that the amendment is a way to enhance the pool of opportunity by driving the culture change that I was delighted to hear the Minister say a lot of the Bill is all about.

Carers will often stay in lower-paid jobs or refuse promotion because of caring commitments. It is extremely important to include caring as part of the consideration and clearly flag that to people who consider the action plans, because it is not an obvious matter for an employer to take into consideration, but it affects such a large number of people in the United Kingdom that it would be an error in judgment not to include it in the Bill.

[Greg Smith]

I rise to address the technicalities of how the amendment would work in legislation and with the Bill’s gender equality provisions. I entirely accept the hon. Gentleman’s point about the disparity between the average age by which a woman might take on caring responsibilities compared with the average for a man, but those are averages and there will be outliers and exceptions across all age ranges and all genders.

I say clearly that the Opposition welcome the contribution of all carers and salute them as the heroes they are, but I am concerned that the amendment would shoehorn a very worthy and important matter into a provision on gender equality. I do not see how it fully fits; it would have been more sensible to have created provisions for the support and recognition of those with caring responsibilities in a new clause or in another part of the Bill. I worry that, like amendment 112, amendment 162 could confuse the Bill’s interpretation as it goes down the line and, potentially, is challenged in court at some point.

I accept the core argument about support for those with caring responsibilities, but it is dangerous to shoehorn provisions into clauses where that is not the primary intent. It is important that the gender equality points remain focused on gender equality issues, on which I think the Government have good intent. If the Bill gets changed too much by us bringing in things that—although clearly in scope, given that they have been selected—are on the edge of scope, that could cause an interpretative challenge later. Provisions on support for those with caring responsibilities would be far better in a new clause or a different part of the Bill, where they might fit more neatly and enable us to avoid judicial challenge.

--- Later in debate ---

[Dame Nia Griffith]

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

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

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

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

[Steve Darling]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[Dame Nia Griffith]

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

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

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

Employment Rights Bill (Eleventh sitting)

Steve Darling Excerpts

Committee stage
Thursday 12th December 2024 Public Bill Committees

[Sarah Gibson (Chippenham) (LD)]

It is a pleasure to serve under your chairmanship, Ms Vaz. I will speak principally to our amendment 5, but Opposition amendment 155 is also relevant.

We broadly welcome the Government’s intention to clarify some issues around probation. However, we feel that these measures will make it too difficult for small businesses, which we all know are the backbone of our economy, to take staff on. If we are not careful, the Bill, albeit not by design, could be catastrophic for some small businesses.

I would like the Minister to assure me that small and medium-sized enterprises can be confident that they will not be unduly penalised if they need to give notice during a probation period. Our amendment would put a number on the period, albeit that it allows a range. Both amendments aim to find out whether the Government have an idea of the timescale for the probation period.

When I speak to some of my small innovative businesses, especially those in renewable energy, one thing that concerns me is that they are taking staff on who do not have experience in the field. There simply are not enough people with experience, so businesses are taking people on speculatively who they hope to encourage, teach and train on the job. If they realise early on that that is not possible and that the employee is not suitable for the sector, they need to be able to start again and try again without feeling penalised. There is no way they can do this over a 10-minute coffee, as one Government Member suggests, because these people have no experience in the field. They are on a learning curve as much as the employer is. This probation period is vital for both sides to understand whether the sector, which is new to many people, is appropriate.

I am very concerned that the period, which is the only thing we know about, is not defined as a set amount of time to give small businesses confidence that they can continue to take on staff about whom they are concerned. If the timescale cannot be set out in the Bill, I would like some idea from the Minister of when we might hear it.

[Steve Darling (Torbay) (LD)]

It is a privilege to serve under your chairmanship, Ms Vaz. I want to unpick another issue on which I would welcome some reassurances from the Minister.

I have spoken to a gentleman from the Torbay Business Forum who supports a charity that works across Devon, particularly by supporting people with learning disabilities into employment. One often finds that it can take a bit longer for people with learning disabilities to find the right place and get a firm contract. What safeguards are there for charitable organisations and not-for-profit companies working in that sector to prevent them from ending up in the difficult position of having people on their books who, sadly, over an extended period of time, they realise are not fit for purpose because of challenges in their lives? There will no longer be the opportunity to offer extended flexibility.

Like my hon. Friend the Member for Chippenham, I broadly welcome the Bill’s direction of travel, but I would like to see some of the rough edges knocked into shape for Torbay residents.

[Justin Madders]

I am grateful to Opposition Members for tabling their amendments and asking a series of questions.

The hon. Member for Chippenham seeks to set the boundaries for the statutory probation period at three and nine months. The hon. Member for Torbay seemed to argue for a lengthier period; I do not know whether he was asking for nine months or beyond, but I take his point. The hon. Member for Mid Buckinghamshire asked us to put six months on the face of the Bill, so there is quite a range of options. We have decided that the best thing to do is work with businesses and consult with them on the detail of the proposal as we move forward. We have expressed a preference for nine months as a result of the engagement that we have undertaken.

As the hon. Member for Mid Buckinghamshire indicated, businesses have said that generally six months is about the right period, but in some circumstances they may need a bit longer to ensure that the person is the right fit. That is why we alighted on the proposal for nine months, but we do not want to tie our hands by putting it on the face of the Bill; we want to continue to work with businesses and trade unions to understand whether that is the right figure. Putting a number in the Bill would be premature, because we will have further conversations. As we develop the light-touch process in our deliberations, that may help people to firm up their views about whether nine months is indeed the right amount of time.

The hon. Member for Mid Buckinghamshire questioned the evidence base. Of course there can be no evidence base for people being unfairly dismissed under two years’ employment, because there is no right protecting them from unfair dismissal before then, except for those who may seek to hang their hat on an automatically unfair dismissal. As we have discussed at length, people sometimes do that because they have a sense of grievance about the way they have been treated, and they may well have a legitimate claim.

Hon. Members generally accepted that the labour force survey statistics are not particularly helpful, but there is quite a lot of evidence about the impact of job insecurity more generally and the fact that the two-year qualification period creates uncertainty for individuals. Business in the Community surveyed 4,000 employees, of whom 66% say that their mental health and wellbeing is affected by their personal job insecurity. In written evidence to this Committee, the Union of Shop, Distributive and Allied Workers notes:

“Being dismissed on spurious conduct or capability grounds, without a fair investigation”—

as can happen at the moment under two years of employment—

“can have devastating consequences for an employee. It can destroy the individual’s morale and confidence and…living standards”.

This is happening to people already, and it is having an impact.

There is also evidence to suggest that there are further advantages for the wider economy. The Resolution Foundation has done some research on the cooling effect of people not moving jobs because they do not have job security. Someone who is considering moving from one job to another may be more likely to take the leap if they have that window of protection, so it is important for individuals as well.