Employment Rights Bill

Report (4th Day) (Continued)

Clause 113: Power to bring proceedings in employment tribunal

Amendment 154

154: Leave out Clause 113

Amendment 154 in my name seeks to remove Clause 113 from the Bill. Clause 113 was tabled at the 11th hour at Commons Report and gives the Secretary of State the power to bring legal proceedings in the employment tribunal, and to do so not because the Secretary of State is directly affected by what the employer is doing, but rather in place of a worker as if the proceedings had been brought by the worker. This is whether or not the worker consents and even if they strongly object. This is legally bizarre, unworkable and totally unnecessary. It could well destroy the relationship between employer and worker—indeed, any future employment relationship since, remarkably, the clause also applies to individuals who are seeking work.

I will focus on three things: the legal implications, the clause’s workability and its policy flaws. I will start with the legal ramifications. It is unprecedented, as far as I can see, for a Secretary of State to be able to institute employment tribunal proceedings or any legal proceedings in place of someone who does not want those proceedings to take place. The Secretary of State says that the provision is modelled on the Equality and Human Rights Commission but, apart from the very different public law context of judicial review, the commission has never instituted a private law action in place of another individual as Clause 113 now envisages for the Secretary of State.

The case of Wilson, to which the Secretary of State referred in her letter of 7 July to noble Lords, was not such a case, since the commission did not act in place of another person. It is inconceivable that the Equality and Human Rights Commission would initiate proceedings in place of a worker in the employment tribunal, let alone where that person did not consent. For the Secretary of State to be able to do so goes against the long-standing principle that, in order to instigate litigation, a claimant should have a sufficient interest—that is to say, be directly affected by whatever issue is being litigated. Exceptions to this general principle have occasionally been made for pressure groups acting in the public interest but, as the High Court reaffirmed in 2022, not where there is a more appropriate potential applicant who has chosen not to bring proceedings, which is the type of case we envisage.

Moving on to the workability of Clause 113, the debate in Committee showed that one reason why there is no precedent for what is proposed is precisely because any litigation lawyer will tell you it cannot work. If the worker does not consent then how will the Secretary of State acquire the evidence to bring a claim? In Committee, the Minister rejected an eminently sensible amendment tabled by the noble Lords, Lord Sharpe and Lord Hunt, which would have required the consent of the worker before proceedings could be brought. This would have made a major difference, but the Government rejected it, which shows that they envisage the power being used even without the consent of the worker. Without that consent, one can see the possibility of a worker, disgruntled with the claim, trying to invoke Rule 25 of the Employment Tribunal Rules to withdraw the claim and the Secretary of State resisting that attempt—hardly a great use of taxpayers’ money.

My Lords, I will speak to the amendment in the name of the noble Lord, Lord Carter of Haslemere. He has spoken with great eloquence and killer arguments. I agree with him, so none of us needs to speak for very long.

As he has said, this clause was added late in the day in the other place and there is one aspect which particularly appals me. The clause provides that the Secretary of State, or rather, in practice, their Civil Service agents in the new enforcement body, or any other enforcement officer as in Clause 113(7)(b), will be able to take a case to an employment tribunal where an employee is unwilling to pursue their own complaint—that is, without consent. Consent is such an important principle. Subsection (6) makes it clear that the Secretary of State or enforcement officer

“is not liable to any worker for anything done (or omitted to be done)”,

such as an error or reputational or personal damage. The clause also risks putting further pressure on the hard-pressed tribunal system.

The Government’s recent implementation plan seeks expert help in getting the detail of the provisions right. I have worked for small companies, I have worked for a company with 500,000 people, I have worked with USDAW, I have been a member of two Civil Service unions and I have been head of HR in a government department. I believe that this lack of consent will cause untold trouble. The clause must be dropped, and I hope colleagues across the House will vote for the amendment of the noble Lord, Lord Carter.

My Lords, first, I declare an interest as a barrister who occasionally practices in employment law. Secondly, in Committee on 18 June, Hansard recalls that I described the Bill as

“a complete Horlicks … truly bizarre”

and

“absolutely beyond belief”.—[Official Report, 18/6/25; col. 2048.]

I am amazed at my moderation. Nothing I have heard since addresses my concerns. As ably outlined by the noble Lord, Lord Carter of Haslemere, whose amendment I entirely agree with, this clause allows the Secretary of State to bring a complaint to an employment tribunal without the consent of the complainant. Have these people ever been to an employment tribunal? This is absurd.

Is it proposed, in the event that the claimant has the temerity to disagree with the Secretary of State’s assessment that they have a valid claim, to witness summons the claimant, on pain of arrest, if they do not come and give evidence in support of their claim? If, when there, they have the temerity to give evidence against the claim brought by the Secretary of State on their unwilling behalf, will the Secretary of State apply to the judge to treat their witness as hostile, thus permitting the former to cross-examine the latter on the basis that they really were badly treated by their employer? This is palpable nonsense. This clause cannot stand part of the Bill.

I also draw the House’s attention to the fact that, as raised by the noble Lord, Lord Carter of Haslemere, the wording of the clause is an exercise in discretion and is therefore subject to judicial review. There can therefore be a judicial review of both the decision to bring proceedings on the part of the unwilling claimant and of the decision not to bring proceedings. This is going to be marvellous for those of us who are both at the employment Bar and the public law Bar. There will be endless litigation, all at public expense on every side. This is absurd. I invite the House to remove this clause from the Bill as swiftly as possible.

My Lords, I cannot match the Churchillian tones of the noble Lord, Lord Murray, but I do agree with the thrust of his remarks. Noble Lords often oppose clauses in government Bills; sometimes noble Lords are alarmed by such clauses, but, very occasionally, it is appropriate to say that a clause in a government Bill is simply bonkers—a technical term, but appropriate in this context. That is the appropriate term in respect of a proposal that the Secretary of State should be given power to

“bring proceedings … in an employment tribunal”,

in place of the worker who has the employment right, where

“it appears to the Secretary of State that the worker is not going to bring proceedings”.

This is a quite astonishing provision, for all the reasons given by the noble Lord, Lord Carter, the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Murray, in particular because the Bill does not require the Secretary of State even to consult the worker whose rights they are going to pursue, far less to obtain the worker’s consent.

Of course, the worker may have good reason not to want to bring proceedings. Not everyone wishes to spend more time with their lawyers. Not everyone wishes to have the finer details of their conduct picked over in public by lawyers for the employer and to be the subject of a public judgment. I declare my interest as a practising barrister, occasionally in employment law cases. I spend much of my time advising clients in all areas of the law that litigation is not necessarily the answer to their problem. The idea that the Secretary of State should decide whether to bring proceedings, and not the worker themselves, could appeal only to those who believe in a state that is ever expanding to take more and more responsibility for areas of life.

What is the mischief that this provision is designed to address? The Minister clearly set that out in Committee. She said that

“vulnerable workers, especially migrant workers, are reluctant or unable to bring their case to the tribunal to enforce their employment rights”.—[Official Report, 18/6/25; col. 2052.]

Where is the research that supports this assertion, especially when trade unions provide legal advice and often representation to their members?

I suggest to the Minister that by far the most substantial reason why vulnerable workers are unwilling to bring proceedings to vindicate their rights in an employment tribunal is the absence of money—the absence of legal aid. There is no legal aid for an employment claim unless it alleges discrimination and even then the legal aid does not cover representation in the employment tribunal. That is why people are reluctant to bring claims. Clause 114 will certainly assist in that respect, as the noble Lord, Lord Carter, pointed out. But the idea that money should be spent by the Secretary of State bringing proceedings in his or her name is a remarkably inefficient and unsatisfactory way to proceed.

There are three other objections to Clause 113 that I will briefly mention. The first is that this clause is, so far as I am aware, unique in our legal system. I can think of no other context in which the Government have power to bring proceedings to vindicate the legal rights of an individual who has chosen not to sue—no other context in this country, at least.

The second point is that, if the Secretary of State is to have such a power in employment law, why not in landlord and tenant law? Why not in proceedings for debt? Why not in family law? There are many areas of the law where vulnerable individuals have rights that they do not enforce.

My final point, which has not been mentioned yet, concerns the financial cost of implementing Clause 113. Can the Minister tell the House what this will cost? This is important because there are so many urgent needs for funding in our legal system. The Government cannot afford to pay for more sitting days in the Crown Court, so rape trials are being listed for 2029. This is outrageous. Because there is no money available, courts up and down the country are in a state of disrepair, with some judges conducting hearings in courtrooms where the roofs are leaking rainwater into buckets. The legal aid system has been drastically reduced in scope—legal aid lawyers are not properly paid. The Government have not yet brought forward the much-needed Hillsborough legislation to protect victims of major tragic incidents because the Lord Chancellor has made it clear that she does not have the funding to pay for lawyers to represent those victims at inquiries.

It is quite simply a disgrace that, instead of meeting some of these urgent financial needs of the legal system, money is to be spent on this ill-conceived, unprecedented and inefficient scheme for the Secretary of State to become a professional litigant on behalf of workers. I very much hope that the noble Lord, Lord Carter, will divide the House. He will certainly have my support.

My Lords, there are several styles of advocacy and we have had a good experience of some of them this evening, but in every way those who have spoken before me have been devastating in their unpicking of the ludicrous nature of the clause that the noble Lord, Lord Carter of Haslemere, is seeking to have removed from the Bill. I cannot improve on the gentle forensic approach that he took to the ludicrous nature of this clause. The legal ramifications, its workability and its policy defects are plain on the face of the Bill and I am amazed that any sentient Minister—or any sentient member of any legislature—could come forward with a proposal in the form of Clause 113. It is manifestly absurd. As the noble Lord, Lord Pannick, thoroughly pointed out, the implications of this clause are so obvious for us all to see that it is even surprising that the Government have the nerve to come forward with it and maintain their support for it.

This clause brought me in mind of something—and now I am going to get into my anecdotage. I, too, am a member of the Bar, but I confess that I have never once, at least not knowingly, been in an employment tribunal. But what I do remember is that about 40 years ago I was asked by some visiting Chinese judges to this country to explain the English law of defamation, which I did. After I had given what I thought was a pretty uncontroversial explanation of the law of defamation in this country, one of the Chinese judges said to me, “Hang on a minute, do you mean to say that an individual has a reputation that can be injured and, if injured, he can receive compensation for that injury in the courts of England and Wales?” I said, “Yes, they can. It’s funny, isn’t it?” He said, “But surely no individual citizen, if there is such a thing, has a private reputation—it is subsumed in the interests of the state, subsumed in the Communist Party of China”. The possibility of bringing a libel action as an individual was just foreign to him and quite puzzling.

If your entire personality is a creature of the state, I suppose that you would support Clause 113, because it is the state that takes over your personal autonomy and makes all the decisions about whether to sue or not to sue, whether to bring proceedings or not to bring proceedings, and whether to give evidence, as my noble friend Lord Murray so graphically explained a moment ago. Why should we, on behalf of the people of this country, tolerate what is little more than an Orwellian intervention in the private lives of the citizen? I cannot believe that the Government have any decent excuse or explanation for this—to use the technical term that my good friend the noble Lord, Lord Pannick, introduced into the debate a moment ago—“bonkers” piece of legislation. The Bill has plenty wrong with it as it is. If we are not to laugh at the Government, not to ridicule the Government and not to lose such little respect as many of us still have for the Government, I suggest that they remove this ludicrous clause.