Employment Rights Bill

Committee (4th Day) (Continued)

Amendment 97

97: After Clause 22, insert the following new Clause— “Employer duties on harassment: impact assessment(1) The Secretary of State must carry out an assessment of the likely impact of sections 19 to 22 of this Act on employers.(2) The assessment must report on the extent to which the prevalence of third-party harassment makes the case for measures in sections 19 to 22 and—(a) include an assessment of the impact of sections 19 to 22 on free speech;(b) include an assessment of the likely costs to employers of sections 19 to 22;(c) include—(i) an assessment of which occupations might be at particular risk of third-party harassment through no fault of the employer, and(ii) proposals for mitigations that can be put in place for employers employing people in such occupations.(3) The Secretary of State must lay a report setting out the findings of the assessment before Parliament.”Member's explanatory statement This new clause requires the Secretary of State to assess the impact of the provisions of Clauses 19 to 22.

My Lords, Amendment 97 stands in my name and that of my noble friend Lord Sharpe of Epsom. I am delighted that my noble friend Lord Jackson of Peterborough and the noble Baroness, Lady Fox of Buckley, have also signed this amendment.

As we look back over the debates we have had on Clauses 19, 20, 21 and 22, we quickly reach the conclusion—as the Minister said in winding up the last debate—that there is a great deal of misunderstanding about the effect of these clauses. That is because the Government’s impact assessment is simply not fit for purpose. This proposed new clause would require the Secretary of State to assess the impact of the provisions of Clauses 19 to 22.

In many ways, I am only repeating what I have said on several other occasions throughout the passage of the Bill: there has not been enough homework done on the impact of the various clauses. That is particularly true in relation to the clauses concerning the requirement for employers not to permit the harassment of their employees by third parties.

I say to the noble Lord, Lord Fox, that my noble friends Lord Young of Acton and Lady Noakes have not exhibited synthetic rage but genuine concern. They have raised a number of important and serious concerns about the clauses as drafted. Yet the Minister, although I was hoping she might, failed to commit to undertaking a comprehensive and robust impact assessment. That is just not good enough.

In fact, on all three of the standard criteria used to evaluate regulatory proposals—rationale for intervention, identification of options and justification for the preferred way forward—the Regulatory Policy Committee has given a red rating to the Government. That should be deeply concerning to all of us in this Committee.

The Government are, of course, absolutely right that harassment in the workplace is unacceptable. That is a point on which there is strong consensus right across the Committee, and rightly so. Many noble Lords have spoken powerfully and persuasively on this matter during our debates, including many, very eloquently, on the Government Benches. Given that, it is all the more baffling that the Government should have taken such a lacklustre and superficial approach to the impact assessment for these specific clauses.

The impact assessment must also address how this proposal would apply to high-risk and complex workplaces, such as GP surgeries dealing with mental health scenarios or A&E departments treating individuals under the influence of alcohol. These are not just hypothetical situations; they are real and frequent examples where interaction with third parties can be volatile or unpredictable.

Equally, this impact assessment should consider the disproportionate impact on small and medium-sized businesses. There is a real possibility that, under these proposals, SMEs could find themselves drawn into the employment tribunal system for the very first time, with all the legal and financial burdens that entails. That is no small matter.

Furthermore, the impact assessment failed to explore why the word “all”—as in “all reasonable steps”—was deliberately dropped during the parliamentary passage of the 2023 Act. This was done, I remember, precisely because it risked imposing onerous and unrealistic requirements on employers, yet that point has been completely overlooked in this assessment, which is a significant and worrying omission.

Finally, no detailed evidence at all from businesses or stakeholders has been presented to support the Government’s current approach. Surely, without such evidence, we are being asked to legislate in the dark on a highly sensitive and consequential issue.

We must not undermine the seriousness of workplace harassment, but equally we must not legislate in a way that is rushed, ill considered or disconnected from the realities faced by employers, particularly in high-risk or public-facing roles. When the Minister responds to this debate on my and my colleague’s amendment, I would be grateful if she would please respond to the following specific concerns.

First, does the Minister accept that these provisions could lead to small and medium-sized businesses being drawn into the employment tribunal system for the very first time? What assessment has been made of the practical and financial burdens this could place on them?

Secondly, given that the employment tribunal system already faces a backlog of over 50,000 cases, does the Minister believe that this legislation risks further over-loading the system? How do the Government intend to mitigate that risk?

Thirdly, the term “all reasonable steps” was removed from the Worker Protection (Amendment of Equality Act 2010) Act 2023 following serious concerns about its implications. This received support from across this House. Why have the Government reintroduced this language in the current Bill? Does the Minister believe that this decision is consistent with the reasoning previously accepted by Parliament?

Fourthly, more broadly, does the Minister believe that this Bill is in alignment with the conclusions reached during the passage of the Worker Protection (Amendment of Equality Act 2010) Act 2023, or are the Government now reversing course? Finally, and crucially, will the Government please commit to carrying out a comprehensive and transparent impact assessment? I beg to move.

My Lords, I rise to support the amendment ably and comprehensively moved by my noble friend Lord Hunt of Wirral, which would, as he explained, insert a new clause. It is an eminently sensible amendment. The noble Lord, Lord Fox, described the arguments put by this side in the previous debate as straw man arguments. He was like Don Quixote tilting at windmills, because his claim that they were straw man arguments was comprehensively eviscerated by my noble friend Lord Young of Acton. They were substantive arguments and substantive concerns, notwithstanding the noble Lord’s comments and those of noble Lords on the Government’s side.

Clause 20 could be described as a hologram or a chimaera because it does not provide very much in the way of detail about the practical ramifications and impacts of this clause on businesses, particularly smaller businesses. The amendment is very sensible. In section 10 of the cost-benefit analysis in the Employment Rights Bill: Economic Analysis that the Government published last October, one is hard pressed to see any detailed empirical evidence from reputable economists or other academics which would sustain the likely costings that the Government have prayed in aid in favour of this part of the Bill. We are told that the universal cost of the Bill to business will be a very speculative £5 billion, but the source of that figure is not very clear; in fact, it is quite opaque. I do not believe that figure. For a number of reasons, the data is suspect, which is why we need the proper impact assessment so persuasively argued for by my noble friend on the Front Bench. We have not had a proper analysis of the detail in a risk assessment of section 10 of the cost-benefit analysis.

We also have not had a proper consultation process on the Bill. We have not had the opportunity to look at the likely impacts that flow from this clause. I say at the outset that, like my noble friend Lord Young of Acton, I am a proud member of the Free Speech Union, which has made a similar case about consultation.

I am grateful to the noble Lord for giving way. I would suggest that the so-called “free speech caveat” is Section 6 of the Human Rights Act, which requires all public authorities, including courts and tribunals, to interpret all other legislation in a way that is compatible with convention rights, including—for the purposes of the present debate, as I understand the noble Lord’s concerns—Article 10 of the convention on human rights.

I defer to the noble Baroness’s expertise on human rights legislation, but we are considering this specific, bespoke legislation. There will not necessarily be a read-across between that and—