Employment Rights Bill

Committee (9th Day)

Amendment 247

247: After Clause 70, insert the following new Clause— “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.””Member’s explanatory statement 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 posted ballot.

My Lords, Amendments 247, 248 and 250 stand in my name and in the name of several of my noble friends. Amendment 247 requires the Secretary of State to consider whether sufficient measures are in place to prevent workplace intimidation before approving any balloting method other than postal ballot.

I believe the postal ballot has served as a cornerstone and a guarantor of democracy for good reason: it provides privacy, anonymity and time for reflection. Workers receive their ballot papers at home, and can consider the issues away from workplace pressures, mark their ballot in complete privacy and return it without anyone knowing how they have voted. This system has protected workers from intimidation for generations. Alternative balloting methods, while potentially more convenient or faster, create new possibilities for intimidation that simply do not exist with postal ballots. When voting moves into workplace environments and on to devices that can be observed, we fundamentally change the dynamic of how workers participate in crucial decisions about industrial action.

Consider workplace balloting stations. Denied the privacy of home voting, workers might find themselves voting in break rooms, meeting rooms or other workplace locations where colleagues, supervisors, or even union officials can observe who is participating and when they are voting—and potentially seek to influence their decision through presence alone. The queue to vote becomes visible; the time spent considering options becomes observable; and the act of voting transforms a private decision into a semi-public one. Electronic balloting presents its own challenges. They might use personal devices in workplace settings where screens can be observed or where pressure can be applied to vote immediately rather than after proper consideration. The technology that enables quick voting can also enable quick pressure.

Each of these alternative methods, while offering potential benefits in terms of speed and convenience, also creates vulnerabilities that postal ballots simply do not have. The private space of the home; the sealed envelope; anonymous returns—these features of postal balloting provide protections that we must be careful not to lose as we embrace new technologies and methods.

These are tangible consequences that affect real families and communities beyond the immediate workplace dispute. The economic impact assessment requirement ensures that unions must honestly evaluate and disclose the broader economic consequences of proposed industrial action. This includes the effects on the wider economy, the impacts on public services, the costs to business and consumers and the consequences for economic growth and productivity. Workers deserve to know whether their action might cost the economy billions of pounds or force the cancellation of thousands of medical appointments.

The family test requirements are equally important because industrial action often has profound effects on family relationships and household stability. Strike action can mean lost wages for participating workers, affecting their ability to meet mortgage payments, support their children or maintain their standard of living. It can create stress within families as breadwinners face difficult choices between solidarity with colleagues and financial responsibility to their dependants.

The family test goes beyond the immediate families of striking workers. Industrial action can affect the families of those who depend on the services being disrupted: parents whose children’s schools close due to teacher strikes must arrange alternative childcare or take time off work, families with vulnerable members who depend on healthcare services may see vital treatments delayed or cancelled and elderly residents affected by bin strikes may face health risks from accumulated waste.

The uncollected rubbish of Birmingham must be a ghastly historical aberration. However, this legislation, if it is unamended, threatens to turn the bins of Birmingham into an augury of the future and create a new norm. The nation deserves better. I beg to move.

My Lords, I support the amendment so eloquently moved by my noble friend Lord Hunt of Wirral. There is not much more to add, but I will try. I also put my name to the amendment.

I thought we had gone past the stage where we look back at history and do not learn its lessons on protecting the franchise and the ballot in sensitive elections. There are no more sensitive elections than workplace elections, on which people’s very livelihood, careers, family and income depend.

I take your Lordships’ Committee back to February 1834. Colleagues on the other side of the Chamber will be aware that in 1833 agricultural workers in the village of Tolpuddle in Dorset quite rightly formed a union to fight wage cuts. The following year they were arrested, arraigned, found guilty and transported not because they had administered oaths, which was the official reason for their incarceration, but because they assembled as a group. The point is that they did not have a secret ballot. They had an open meeting to form the union and a strategy for fighting those wage cuts, and they were betrayed by two union members. If you talk to Unite the Union and GMB, there is nothing new under the sun.

That said, the point was they did not have a secret ballot. One reason that the unions have evolved in a positive way over many years—hitherto, until we reached this Bill—is that we have had that workplace democracy, unlike in the bad old days of the 1970s and before, where people were pressured to join a union in the closed shop and sometimes pressured to support industrial action which was uncalled for and damaging both to their own jobs and to the business generally, as we saw, for instance, in 1984 with the miners’ strike. Amendments 247 and 248 tabled by my noble friend Lord Hunt of Wirral are very sensible. I would say: be careful what you wish for, because there is another historical example, although noble Lords on the other side may resile from it. The Jim Crow laws in the southern part of the United States existed for many years post-reconstruction in 1865. That they marginalised, traduced and undermined the right of black people, of African Americans, to vote was, in effect, because they did not have a secret ballot and had to register, and there were many legal impediments to them voting.

My Lords, I oppose this group of amendments. I have to say that it is with deep regret, because my assessment of them is that they are trying to stir up a spectre of trade union intimidation, which reminds me strongly of the initiative going back in history—not quite as far as the noble Lord, Lord Jackson—to 2014, when the Government commissioned Bruce Carr QC, as he was then, to conduct an investigation of intimidation in workplaces. As it transpired, Mr Carr declined all opportunities to make any recommendations whatever on the basis of the evidence that he received. For the TUC’s part—and I was at the helm at the time—we described it as a party-political stunt and said that, frankly, the then Conservative Party in government should have repaid the taxpayer for the significant cost of conducting that investigation that led to zero—I repeat, zero—recommendations for changes in the law. In fact, Mr Carr went on just a year or two later to oppose the then Conservative Government’s Trade Union Bill as “a threat” to industrial relations and to civil liberties.

That brings me to safe and secure e-balloting. It seems to me that anybody who was a true democrat would be looking to increase opportunities for participation in safe, secure, secret and electronic balloting. Any boost to democracy should be welcome. I have to say that it is disappointing that those who oppose the right for trade unionists to cast their vote safely, securely and secretly by electronic ballot apparently believe that there is no threat of intimidation in respect of political parties. Therefore, it is fine for political parties to use modern methods of balloting; it is not fine for trade unionists. I would ask what view that gives us of the perception of trade unions from the Benches opposite, when, on the contrary, we should be proud of trade unions. We should tackle the causes and not just the symptoms of industrial action. We should be proud of constructive industrial relations in this country, which are vital for productivity and growth.

My Lords, Amendments 247, 248 and 250 would introduce further requirements in relation to trade union ballots, particularly concerning the risk of intimidation, the use of workplace locations and the information that unions must provide to members. While the intention to ensure that ballots are conducted fairly without pressure is understandable, I question whether these proposals are justified. They appear to introduce new procedural barriers for trade unions, with little evidence that safeguards are failing. There is a broader concern that measures of this kind may tilt the balance even further against workers attempting to organise and exercise their rights. I would be grateful if the Minister could set out whether these amendments are proportionate and necessary, and how they align with the broader approach to employment and industrial relations.

My Lords, I thank the noble Lord, Lord Hunt of Wirral, for introducing these amendments tabled by his noble friend Lord Sharpe of Epsom. I thought that, with the contribution from the noble Lord, Lord Jackson of Peterborough, we were starting the history lessons a little early today—early in terms of this being the first group and in going back to the 1830s. I bend to no one in enjoying anecdotes about the Tolpuddle Martyrs, so I thank the noble Lord for his contribution, although I am not sure what it added to the debate.

Amendment 247, although well intentioned, is unnecessary. We all share the concerns outlined by the noble Lord, Lord Hunt of Wirral, about interference in balloting around industrial action. We understand that no worker takes a decision about voting for industrial action lightly—whether it is strike action or action short of a strike—and that they understand the consequences, because if action is voted for, they will be the ones who suffer directly by losing pay. We must ensure that when we talk about this, we talk about both sides of the ledger.

The amendment is well intentioned, but it is unnecessary, because Section 230 of the Trade Union and Labour Relations (Consolidation) Act 1992 already requires that every person entitled to vote in an industrial action ballot must be allowed to do so without union interference. Furthermore, recognition and de-recognition ballots under Schedule A1 are already subject to provisions prohibiting unfair practices whereby the Central Arbitration Committee can order that a ballot is re-run if an unfair practice claim is found to be well founded. To introduce a new voting method to statutory trade union ballots using Section 54 of the Employment Relations Act 2004, the Government must already consider that the new method would allow the ballot to meet the requirements under Section 54(12). Specifically, the Government must consider that those entitled to vote have an opportunity to do so, that votes are cast in secret and that the risk of any unfairness or malpractice is minimised. Therefore, safeguards are already provided for in Section 54(12)(c) that cover intimidation if it takes place in the workplace or elsewhere. The noble Lord’s amendment is therefore not required.

Finally, we oppose Amendment 250 from the noble Lord, Lord Sharpe of Epsom, which would unnecessarily ask trade unions to conduct an impact assessment and a family test, for these assessments to be made public, and for trade union members to be made aware of the result of these assessments before trade unions can take industrial action. At the end of the previous day in Committee, we discussed the impact of the previous Government’s trade union legislation and the increased days lost to strike action between 2022 and 2024. We contended that that demonstrated that increased administrative requirements and bureaucratic hurdles, of the kind the amendment would create, make it only more difficult for trade unions to engage in good faith negotiations with employers and thus make industrial strife more likely. I hope this goes some way to addressing the question posed by the noble Baroness, Lady Kramer, about our understanding of the impact of these amendments on industrial relations.

The amendments are very woolly on how, given that we have had an extensive amount of detailed discussion in previous days in Committee, the impact assessment called for would actually operate. They would introduce further unfair barriers on trade unions. On the economic impact assessment, how would this be honestly evaluated? What would be an acceptable standard of assessment? Who would monitor that it was a fair assessment? Who, indeed, would pay for it? It seems that they would put more barriers and costs on the individual members to fund something that, I think we have agreed through days in Committee, is a fairly fundamental right that people have: the right to vote democratically to take industrial action.

Also, the noble Lord’s amendment does not specify how a family test would work. It does not link into any statutory definition, and it makes for a highly impractical test. Some might speculate that it is a backdoor way of retaining the restrictions on specific sectors that one might say are more disruptive to family life, such as transport and education, that were initially introduced in the Trade Union Act 2016, which—I remind noble Lords opposite—we have a manifesto commitment to abolish.