Employment Rights Bill

Baroness Coffey Excerpts

Report stage
Monday 14th July 2025 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I support Amendment 28, which has been so well moved by my noble friend Lord Hunt of Wirral. My main problem with the statutory sick pay clauses in this Bill is that the Government are proceeding without a reliable evidence base. The Government do not collect data on sick leave taken by employees. Instead, they have relied on some modelling by the Department for Work and Pensions, and that modelling in turn rests on some surveys that are carried out by the DWP. Those surveys have some problems, which the DWP itself owns up to, in terms of statistical quality. The Office for National Statistics also published some data on sickness absence. These data are labelled “statistics in the course of development”, and we all know that the ONS currently has major problems with its labour market statistics.

Nevertheless, the Government have used these data and made some challengeable assumptions of their own, such as that there will be no increase in sickness days taken off if the changes in Clauses 10 to 14 go ahead. They have come up with an additional cost to business of £420 million, which they then calculate as £15 per employee. I do not think that £15 passes the common-sense test. It implies that employers will bear the cost of not much more than an extra half a day of statutory sick pay at the rate that is specified in the Bill.

Part of the problem is that the Government’s calculations average those costs over 24 million employees, which is roughly the size of the whole private sector workforce. Within that, nearly a half of employees are employed in large businesses, many of which have their own sick pay arrangements and do not rely on the statutory sick pay arrangements that my local friend Lord Hunt outlined. I tried to find the complete set of costs for small and micro businesses. It looks as if the costs for the smaller end of the scale of businesses are roughly double the amount per employee, but it is very difficult to tie it down, because the dataset is incomplete—certainly the one that is available in public. As my noble friend has already pointed out, the Government’s own assessment has owned up to the fact that these costs will disproportionately bear on small and micro businesses.

Even if we double the £15 per employee to £30, I am not sure that even that is a realistic estimate of the costs that will fall on individual businesses, because it amounts to just a bit over a day of statutory sick pay at the new rate in the Bill. That does not seem to me to make any sense at all. The Government should have done proper studies of current sickness patterns and costs for the various businesses that are affected by these clauses before going ahead. In particular, I believe that the costs to small and micro businesses should have been evaluated before the clauses were proceeded with. The only thing that we know for sure about these clauses is that the impact on small and micro businesses will be disproportionately large.

However, I recognise that the Government would probably have gone ahead with these provisions even if they had gold-standard data and analysis, and even if that analysis showed that the cost was 10 times the amount that the Government currently estimate. That is the reason I support my noble friend’s Amendment 28, with a one-day waiting period and a qualifying threshold of two days, which would go some way towards reducing the impact on smaller firms. Survey data shows that nearly 60% of sickness absences are for one or two days. The small change that my noble friend’s amendment seeks could have a major impact on businesses and the bureaucratic burdens that they would have to bear.

I support Amendment 30, which would reintroduce a statutory sick pay scheme. I would have confined it to small and micro businesses, because that is where the greatest harm is, but, in this uncertain economic environment, with costs being piled on businesses in all directions, businesses deserve protection from the Government’s policies. For that reason, I support Amendment 30.

[Baroness Coffey (Con)]

My Lords, I have added my name to Amendment 30, tabled by the noble Lord, Lord Goddard of Stockport, which builds on something that I raised in Committee. I have been asked to do a statement for the Covid inquiry regarding the economic response and so have been going through a variety of notes from five years ago. One of the most successful things that we did then was to support employers in the deployment of statutory sick pay by ensuring that people could stay at home and not be spreading coronavirus at work.

For me, that reinforced something that made sense for the country as a whole and its public health and was fair. It was fair to businesses that, while the country was being asked to do something and they were being asked to do something as employers, the Government helped with the cost.

Part of this entire debate is the fair work agency and it being fairer for employees—and apparently it will be fairer for employers, around productivity. I do not want to repeat all that I have said on this but I recall that, when there used to be a rebate, it was recognised that this was the bare minimum, with many employers paying a lot more than the statutory sick pay rate. It was about co-working and recognising that, as a mature country, we believe that people should continue to be paid when they are off ill, and that the Government have an interest in that too. That is why I was particularly keen to sign Amendment 30, although I am conscious that some of its finer details could be worked out further.

Amendment 28 was tabled by my noble friends on the Front Bench. Of the variety of changes that are happening through this Bill—many of which, I remind the House, could have been done through statutory instruments—statutory sick pay from day 1 has come up time and again with most of the employers that I have met or heard from. The impact is genuinely worrying, particularly for people in the hospitality sector, the retail sector and so on. Going straight to day 1 is a step too far backwards. That is why I am supporting my friends on the Front Bench.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, in the evidence and analysis document that the Government very helpfully gave us last week, it notes that up to 1.3 million employees will get a new entitlement to statutory sick pay and that that will increase the amount of sick pay that workers receive by around £400 million a year. At face value, this is in many ways a very positive step forward. However, that same document brought up some cultural issues. I would like the Minister to reflect on whether day 1 statutory sick pay will help to tackle those issues.

The document notes that

“stress, depression or anxiety accounted for 17.1 million working days lost in 2022/23, equivalent to a loss of £5.2bn in output per year”.

Is there a danger that an unintended consequence of day 1 sickness pay would be people being encouraged to too easily see themselves as not fit for work? Can the Minister answer that? The same document says that:

“Measures to improve worker wellbeing will result in happier, healthier and more productive workers, which could be worth billions of pounds a year”.


That seems rather far-fetched. It might mean that people will more easily go on the sick, not because they are shirkers but because we are creating a culture where that is the norm.

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[Lord Palmer of Childs Hill (LD)]

My Lords, Amendments 31 and 32 in my name relate to the often-ignored subject of kinship care. The amendments seek to introduce—at last—kinship care leave as a paid entitlement and to establish a legal definition of kinship care, which is something many people do not even think about. It is time to address the current lack of formal employment rights and protections for kinship carers.

It is long overdue that we legally recognise and reward the grandparents, aunts, uncles and other relatives who step in as carers. More than 130,000 children in the UK are in kinship care, which is, amazingly, three times the number who are in foster care. When family crises occur—and they do occur—it is often kinship carers who step up to the plate, preventing children from being swept up into the formal care system.

Amendments 31 and 32 would allow families breathing space in order to adjust and, most importantly, support the well-being of the child. Support of kinship care is cost effective, as it reduces pressure on an overtasked care system. It is time to be compassionate for everyone’s long-term benefits—and I may well ask your Lordships to vote on this at the end of the group.

The Government’s Amendment 34 extends bereavement leave to include pregnancy loss. I commend this amendment to the House.

We are not debating or voting on Amendment 97 now, because it has been degrouped. It is in the name of the noble Baroness, Lady Grey-Thompson, and gives a statutory right to paid leave for working parents who are forced to stop working to care for a critically ill child over 28 days old. This is described as Hugh’s law, after one who suffered in this way. I commend this amendment, which we will get to when we get to its degrouped place; it was originally in this group.

The other amendment in my name, Amendment 104, is on statutory carer’s leave. We owe a great deal to unpaid carers, who are the backbone of our society. Their support is worth a staggering £184 billion a year to older, ill or disabled relatives or friends—support without which society would collapse. The reality, however, is that this comes at a cost to them. Around 600 people a day give up work to care, and 1.2 million face poverty and financial hardship. Research shows that the majority do not have a choice about caring, because there are no care alternatives available. Employers are losing skilled labour every day because of caring, at a cost to their productivity. For some small employers, which we have spent a lot of time talking about, losing skilled workers can have an even bigger impact.

This amendment in my name would provide for the Government to publish regulations that would recompense employers, particularly small employers. There is insufficient social care and health services to plug the gap. Supporting carers to stay in employment is cost effective, and many carers have told Carers UK that they want to stay in work. Polling carried out by Carers UK found that 88% of unpaid carers of working age said that they needed paid carer’s leave.

The amendment that we brought forward in Committee has been refined, I hope for the better, having received comments from the Minister that the original drafting would have been different to that for other entitlements. We have therefore aligned the entitlements to pay for statutory carer’s leave with other similar statutory entitlements. This is very modest and yet would reflect a critical step forward for unpaid carers. The modest entitlement would normally be up to only five days of paid leave. It is described as a week, and a week is—amazingly—described as up to five days. This is how it is set out in the Carer’s Leave Act.

The Government could set the rate of statutory pay. The cost of statutory carer’s leave, based on estimates from Carers UK, is between £5 million and £32 million per annum. That is based on actual take-up rates of carer’s leave with employers. Centrica has two weeks of paid carer’s leave at full pay, with a further two weeks of matched leave. The Carers UK report says that just 3.4 days, on average, are taken by employees as carer’s leave. The Government’s estimate of the cost of carers’ inability to work is £37 billion. The personal cost is even greater if carers have to give up work, as they do, in order to care.

In advance of the Bill, Carers UK has been talking to carers about what paid carer’s leave would mean. One carer, who is a bus driver, has not had a holiday in seven years because of caring. He takes annual leave first, because it is paid, then unpaid leave if he has to. Work is extremely important to him, as he said that it “keeps him going” but that it is hard caring for two people without a break. He has been to his council, but does not get much support. He is still waiting, because the more trained care workers who his son needs are not available.

Another carer, who works in the NHS, is struggling to work and care, but she does not have paid carer’s leave. This leaves her burned out and exhausted, and she has to take her annual leave. We cannot afford to lose valuable NHS staff as a result of providing unpaid care. Paid carer’s leave is vital for those who cannot afford to take unpaid leave. What hope can the Government give to people like this who juggle every day and who need support such as paid carer’s leave, so that they can keep caring and working?

Will the Government go one step further and commit to building on the Carer’s Leave Act 2023 in introducing paid carer’s leave? Given that a parental leave review has been published for consultation and engagement, can the Minister tell the House what the Government’s message to unpaid carers and the review of carer’s leave are? Will the objectives, timetable, report and engagement be published? Carers are a valuable resource, but they are not appreciated. It is time that we in this House started appreciating them. I beg to move.

[Baroness Coffey (Con)]

My Lords, I speak to the two amendments that I have tabled. The loss of any foetus or potential child is a massive grief, and I entirely understand why this provision has been brought forward. My right honourable friend Jeremy Hunt commissioned the independent review into pregnancy loss several years ago, and a variety of actions have taken place, particularly in thinking of people with miscarriages. By law, a stillbirth is anything from 24 weeks onwards, but being able to register a birth such that, in effect, people who lose their foetus after 24 weeks can have a birth certificate in the same way was a good thing to do.

I am speaking today to try to get clarity on what the Government are proposing. If the Bill specifically mentioned miscarriage or ectopic pregnancy or molar pregnancy, I would not be speaking, although I would still want to get some understanding through Amendment 35. Perhaps I will start with that first.

I would be very grateful if the Minister could explain the new Section 80EA(3A)(b) of the Employment Rights Act 1996, to be inserted by Amendment 34. It says that a person is bereaved if

“the employee satisfies specified conditions as to relationship with … a person who has suffered a pregnancy loss … or … a child who had been expected to be born had a pregnancy loss of a specified kind not occurred”.

It would be useful to understand why it is not being put in the Bill who it is expected that this will extend to—I do not know whether it is the father, a donor, a sibling, a grandmother, a grandfather and so on. I completely understand why, at such a difficult moment, we might want to extend bereavement leave, and not just for the mother, but it would be useful to get a further sense of that from the Government.

The main reason I am speaking today is my Amendment 41. It is an amendment to Amendment 40, which inserts a new paragraph into Clause 18 that defines “pregnancy loss” as

“the ending of a pregnancy after less than twenty-four weeks of pregnancy in any way other than a live birth, or (b) the failure of an embryo to become implanted following a transfer carried out in the course of providing treatment services within the meaning of the Human Fertilisation and Embryology Act 1990”.

I am conscious that these recommendations were made by a Women and Equalities Select Committee report, but I want to understand what is in the Government’s mind today. It is quite a moment to choose to, in effect, use the Employment Rights Bill to define what a pregnancy is, particularly with regard to IVF. I know many people who have been through IVF, who of course have disappointment if it does not work that month or that year, and will try again. The fact that roughly 30% of IVF treatments are successful—I have shared those statistics previously—leaves a whole range of situations where a transplant has not happened. As I said, I am somewhat concerned at what is almost the redefinition of “pregnancy” when we are considering the body of a woman.

Furthermore, when it comes to

“the ending of a pregnancy … in any way other than by a live birth”,

the latest statistics published by the Department of Health and Social Care stated that there were around 250,000 abortions in this country in 2022. That was up 17% from the year before. Meanwhile, although I can entirely understand aspects of foetal anomaly or risks to the health of the mother, according to Department of Health and Social Care statistics that were published and referenced in the Commons Select Committee report, there were around 3,300 abortions for those reasons. There is a very significant difference between 3,300 and 250,000 but, as it stands, anyone who had a legal abortion will be counted in that statistic. I am not aware that the Department of Health and Social Care has yet decided how it will count in its statistics the number of abortions from pills through the post. At the moment, it does not even count the number of pills issued.

I am trying to get clarity from the Government. Is it really their intention that a person who has an abortion—up to 250,000 people a year—will be entitled to bereavement leave? That is what this primary legislation is saying.

On other issues in the Bill, all sorts of things are put into Henry VIII powers or regulations or other conditions. I seek to understand why the Government feel that this should be in the Bill. Obviously, every loss undoubtedly brings horrific grief. I know that, having had had to care for people in that situation and similar, and I understand why this is going ahead. Despite the potential for sickness leave being open, I recognise that under the Equality Act any discrimination would be against the law. I understand the steps the Government are taking, but I would be grateful for a genuine and huge level of detail on what they are setting out today in primary legislation. I commend my amendments to the House.

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[Lord Leong (Lab)]

Sorry. We will address that as and when this legislation has Royal Assent. We will formalise the terms of reference soon and we will ensure that that information is made public so that everyone can have a look at the review. However, the amendment poses a number of challenges and presupposes the conclusion of the ongoing review.

I turn to the exceptionally important topic of bereavement leave for the loss of a pregnancy. The amendments that this Government have made extend bereavement leave to provide a day-one right to protected time off to grieve a loss before 24 weeks of pregnancy. I am grateful to the Women and Equalities Committee for its important work highlighting the gap in support for those who experience a pregnancy loss before 24 weeks. I pay tribute to my friend and colleague Sarah Owen MP for her work campaigning on this issue and for sharing her personal experiences in impassioned debates in the other place.

The loss of a baby at any stage is incredibly difficult and tragic. The Government recognise that pregnancy loss is a bereavement for many families and fully accept the principle of bereavement leave for pregnancy loss. The amendments will ensure that all employees can have time away from work to grieve and recover when they need it most. In line with bereavement leave, the amendments provide for a minimum of one week’s leave, a minimum of a 56-day window to take the leave and protections around redundancy and dismissal. The Government’s amendments allow for the types of pregnancy loss that will be in scope of the entitlement to be explored in consultation and specified in regulations. IVF embryo transfer loss is specifically referenced in the definition of pregnancy loss to ensure that there is the power to include that in secondary legislation if decided after consultation.

On Amendment 104 in the name of the noble Baroness, Lady Coffey, removing the definition of pregnancy loss entirely would mean that we would not be able to consider providing for certain scenarios such as IVF embryo transfer loss or to consult properly with all affected. No definition in the Bill would lead to uncertainty about what could possibly be captured in regulations—that includes abortion—and limit our ability to consult on a full range of scenarios. We know that all types of pregnancy loss can be experienced as a bereavement.

The Government can therefore not accept the amendment as it is vital that we consider the full range of scenarios that could be in scope in partnership with those impacted. Other details of entitlement, including eligibility, total duration of leave and the types of pregnancy loss in scope, will be defined in secondary legislation. Due to the sensitive and personal nature of bereavement for pregnancy loss, it is important to consult stakeholders on the specifics of the entitlement to ensure that the policy properly reflects and is sensitive to the needs of employers and employees.

Regarding eligibility, the Government’s amendments include provisions to ensure that there is the ability for entitlement to apply also to partners or surrogacy arrangements, if found to be appropriate after consultation. The noble Baroness’s amendment would remove this definition, which would significantly narrow possible eligibility to only those who have directly suffered the pregnancy loss. We know from testimony to the Women and Equalities Committee the devastating effect that pregnancy loss can have on fathers, partners and families. Grief in these situations is not confined to the woman carrying the baby. We therefore cannot accept the amendment as it is only right that it is considered in consultation and conversation with those affected.

By defining details such as eligibility in secondary legislation following consultation rather than in the Bill, we can ensure that the entitlement considers those impacted and a wide range of views in its development and has the flexibility to be updated over time as the legislative landscape and society evolve.

The Government’s amendments recognise the profound impact and heartbreak that can accompany pregnancy loss, while also acting to address the stigma that often accompanies it. The Government are setting a floor for businesses that will ensure all employees have a right to bereavement leave. Bereavement is not an illness or a holiday, and it needs its own special category of treatment. With that, I must ask the noble Lord, Lord Palmer of Childs Hill, to withdraw Amendment 31.

[Baroness Coffey (Con)]

The Minister was very helpful in saying who he felt would be in the scope of other people to be specified—the partner or somebody involved in surrogacy. He has not talked about what he thinks would be the scope of the abortions. Is he looking to make this the 250,000 or are we talking more about the 3,300 where there is a foetal anomaly? If the Minister has already made an indication on one, hopefully he will have considered the other.

[Lord Leong (Lab)]

I thank the noble Baroness for that. I did say that the review will look at that, and hopefully it will cover what noble Lords are asking for. I will be moving Amendments 33, 34 and 36 to 40 shortly.