Baroness O'Grady of Upper Holloway:
Moved by Baroness O'Grady of Upper Holloway
4: The Schedule, page 4, line 40, at end insert—“234CA Protection of employees (1) A person is not subject to a work notice if the person in question has not received a copy of the work notice.(2) It is for the employer to prove that an individual received a work notice.(3) Failure to comply with a work notice is not to—(a) be regarded as a breach of the contract of employment of any person identified in the work notice, or(b) constitute lawful grounds for dismissal or any other detriment.(4) Having regard to subsection (3), failure to comply with a work notice is deemed to be—(a) a trade union activity undertaken at an appropriate time for the purposes of sections 146 (detriment on grounds related to union membership or activities) and 152 (dismissal of employee on grounds related to union membership or activities), and(b) participation in industrial action for the purposes of sections 238 (dismissals in connection with other industrial action) and 238A (participation in official industrial action).”Member’s explanatory statementThis amendment would prevent failure to comply with a work notice from being regarded as a breach of contract or constituting lawful grounds for dismissal or any other detriment.
My Lords, I will speak to the amendment in my name and the names of the right reverend Prelate the Bishop of London and the noble Lord, Lord Fox. This amendment would ensure that an individual employee named in a work notice cannot be sacked or sanctioned if they do not comply. In short, it would avoid the risk of a shameful and ultimately self-defeating spectacle of nurses and other key workers, whom not so long ago we all clapped, being sacked.
Employees are currently protected against unfair dismissal for the first 12 weeks of a lawful strike. In Committee, there were strong concerns around the Committee that this Bill, as currently drafted, unilaterally removes that protection from individual key workers named in a work notice who do not comply, and that this is not compatible with the UK’s obligations on human and labour rights. No other European country with minimum service levels gives employers the power to take away the livelihoods of workers in these circumstances —not one. This would make Britain an outlier in Europe and would constitute a gross infringement of an employee’s individual freedom.
The scope of the sectors covered by the Bill so far means that an estimated 6 million workers could see their employment contracts unilaterally changed in this fundamental way—and all by secondary legislation. Most of these workers are women. In sectors such as health and transport, as we have heard, they are disproportionately black and ethnic minorities. It would not matter that there has been a democratic vote, or that a union has successfully overcome the many draconian obstacles to mounting a lawful strike.
Every worker is vulnerable, because individual workers who have lawfully voted for strike action would be entered into a P45 lottery. If they are unlucky enough to be individually named on a work notice and disobey for reasons of sincerely held belief, they could be lawfully and instantly sacked. This Bill does not even require an employer to prove that they ensured that the worker concerned received a copy of the work notice. Instead, employers are given the power to effectively requisition individuals under threat of losing their livelihood. Most right-minded people find that disproportionate, dictatorial and fundamentally unfair.
Not so long ago, the Government agreed. When the railways minimum service levels Bill was announced in the Queen’s Speech in 2019, the Government promised that sanctions would not be directed at individual workers. This amendment seeks to redress the balance and address that injustice. It would ensure that the freedoms and livelihoods of individual workers are protected. It would prevent the creation of a P45 lottery. It would reassure many unions and employers, including NHS employers, which say that the threat to sack strikers, even before this Bill is enacted, is poisoning industrial relations and making difficult situations much worse.
After all, dismissing key workers would do absolutely nothing to tackle the blight of public service staff shortages and backlogs on the country. Since the Minister confirmed that employees named on work notices who call in sick on the day cannot be sacked, it would avoid the potential chaos of making emergency cover much more difficult to plan and deliver. At Second Reading, the Minister stated unequivocally that
“This legislation is not about sacking workers”.—[Official Report, 21/2/23; col. 1563.]
This amendment would ensure that the Minister’s commitment is met.
My Lords, I will speak in support of Amendment 4, to which my friend the right reverend Prelate the Bishop of London has signed her name. Bishop Sarah sends her apologies that she cannot be here, but we both strongly support the amendment, not least given reports that many important voices across the healthcare world, including the Royal College of Nursing and NHS Providers, are similarly supportive.
The basic principles and urgency of the Bill are understandable, given the events of the past months. At the same time, those events themselves reflect the very low levels of morale and trust across many of our essential services, and an overly robust approach at this point would only exacerbate the situation further— in effect, pouring fuel on the fire. The idea that the failure to comply with a work notice should be regarded as a breach of contract or grounds for dismissal, thereby removing existing protections for the employee under the 1992 Act, would seem to reflect that overly robust approach. Were this amendment to be passed, the relevant trade union would still hold some liability, ensuring that this would still remain a useful and functioning Bill.
My friend the right reverend Prelate is understandably concerned about this from a healthcare angle, particularly given her former role as the youngest ever Chief Nursing Officer. From that perspective, passing the Bill without this amendment would seriously damage the co-operation and good will required for successful local negotiations in the somewhat febrile atmosphere in which we find ourselves. NHS Providers points out that, were individuals to go on strike contrary to a work notice and then be fired, unions could, and most likely would, take other action, either through work to rule or calling in sick en masse. Both would undermine the Bill’s primary and laudable purpose to provide safe levels of care. So, if that purpose is at the heart of the Bill, supporting this amendment seems to me to be essential.
Amendment 4 covers the issue of protecting workers from being forced to cross their own picket lines under threat of the sack; it is a fundamental issue which strikes at the heart of trade unionism. The Bill, as it stands, gives bad bosses the power to target and victimise trade union activists by issuing work notices. Although I accept that minor concessions have been made, there are still no sanctions on bosses behaving badly, and we know, unfortunately, that some will do so, given the opportunity. The only way to protect workers fully is to make it absolutely clear that, if a striking worker refuses to cross a picket line during lawful industrial action, they will not lose their legal protections and will not be subject to dismissal. That is why the amendment is so important. Nobody should be forced to make the agonising choice between betraying their trade union principles of solidarity and standing together as workers and potentially losing their job.
Let us dispel the myth that this proposed law follows only what most of Europe already does—what absolute nonsense. This week, over 120 elected politicians from around the world, including from France, Germany, Italy and Spain, have called on our Government to abandon the Bill, pointing out that
“The UK already has some of the most draconian restrictions on trade unions anywhere in the democratic world … Despite this, the UK Government is set on further rolling back worker protections and freedoms”.
On Amendment 5, just as trade union members must be protected from being forced to act against their own interests during a legally organised dispute, so must the trade unions themselves.
This proposed law would, without a doubt, poison industrial relations and victimise workers and their unions. That is why I urge all noble Lords to support both amendments, and particularly Amendment 4.
My Lords, why did trade unions come about? Because there were bosses who would pick off one person after another to undermine the workforce. This amendment says that it is worth protecting this principle. We will bring back chaos if the Bill allows an employer to say to an individual who has not been given a notice that they have breached their contract. Of course, collective bargaining, at the heart of it, means that the whole body tries to agree—and that is why the noble Lord said that the best resolution comes from people being together at a table and talking, and not from having this kind of legislation.
I support this and the following amendment for the simple reason that every worker has a right to a fair wage for a fair day’s work, and every worker has a right to withdraw their labour if they think matters are unfair. You cannot bring in legislation which simply gets people back to work because conversation or discussion has not happened.
We should think of why the trade unions were born, and not go back on that—noble Lords should support the amendment. I am sorry that the noble and learned Lord, Lord Thomas, did not press his amendment to a Division; I would have supported it, simply because it would have given clarity. The law at the moment is unclear—and we are going to be in trouble at some future time because he was too gentlemanly to press it.
I support Amendments 4 and 5. The issue Amendment 4 addresses is a bit odd, as it creates a situation of servitude for key workers. That slightly puzzles me, because I am sure that the Minister clapped for nurses and the NHS during the lockdown and supported them then—so why not now? Perhaps he can explain that to me. It looks to me as if the Tories are taking a bad situation of their own creation and making it worse. This amendment is extremely important. I hope that the Minister, when he clapped for those nurses, realised just how important they were.
My Lords, this amendment really shows what a ludicrous Bill this is. The clause that we are dealing with is unworkable. As noble Lords know, I have to declare an interest as an executive honorary president of the British Airline Pilots’ Association. I have talked in this House before about the fact that this Bill allows the Minister for Transport, our good and noble friend Lady Vere, to identify a pilot and order him, a week before the plane takes off, to fly to Washington. That is ludicrous. If you live in the real world of aviation, you will know that a plane is not cleared for take-off until the pilot certifies that it should take off, something like two hours before it leaves. You have to consider weather and whether the level of staffing is correct—and then the pilot is the captain of the plane, responsible for ensuring that the alcohol levels of the staff are not breached. Unless you let people make a decision, you are just running yourself into trouble.
Aviation is about 70% unionised. Is the employer going to identify some people who are not in the union and tell them to go to work, rather than people who are in the union? You have the same group of people, and some of them are in and some are out. How are you going to decide that, and how will you decide matters such as illness? What happens if someone rings up and says, “I think I’ve got Covid”? Are you going to be able to withdraw their protection from unfair dismissal? Of course not.
This clause, above everything else, demonstrates the weakness and stupidity of the Bill. The idea of naming people in a work notice could come only from the desk of someone who has never had to do it, frankly.
I want to look at Amendment 5. The reason put forward in a note to me for the proposal in the Bill was that the minimum service levels would be far less likely to be achieved as trade unions may attempt to persuade workers not to comply with work notices. That is fairyland. Trade unions spend more of their time and money on our friend the noble Lord, Lord Hendy, and his colleagues in the law than is probably sensible. At every stage, they look at the law and say, “We must not break it”.
In my experience, the executive of a trade union, and particularly the local branches, will spend more time persuading the hotheads not to do stupid things than they will encouraging them to do so. It is, for instance, a regular occurrence that a number of British Airways staff believe that they can take actions that are clearly in contravention of the law. It is the job of the executive to say to them, “You will damage the union”; it is not the job of the executive—it never has been—to say, “Behind the scenes, do you think you could do this?” That is not the way that trade unionism works.
I say that as someone who has been involved in trade unionism, for my sins, for over 60 years. It is 60 years since I first became a branch official. Throughout a lifetime of serving in different trade union branches, executives, and now as president of a TUC union, I have always been impressed with how the workers we represented wanted to get it right. They have often had very good reasons for feeling annoyed with the employers, but the job of the union, as a structure, has been to canalise the dispute in such a way that it is within the law and is a compliant dispute that attempts to achieve the objectives that the workforce is looking for. One reason we have trade unions in this country is to provide a bit of balance.
The Bill is not even sensible. It will not work. I hope that, when it goes down the corridor, our new Prime Minister will look at it and say, “For God’s sake, let’s just bury it”. There are far more important challenges facing Britain today than passing an unworkable Bill to annoy one section of the population—not to mention the 1.5 million trade unionists who voted for the Conservative Party at the last election. They will probably vote for it again because they do not vote according to their union; they vote according to their class interests. Most of my union members vote for the Conservative Party.
Let us be aware that this is not a matter where a Conservative Government have to stand up to the unions—they are standing up to their own supporters. Ordinary members of trade unions have worked hard to help the country become the prosperous country that it is. This sort of legislation is just the sort of damn nonsense that people look at and say, “My God, they just do not understand, do they?” They do not say that the Government are trying to do something. The general reaction to this Bill, I am afraid, among my trade union friends is that the Government do not understand what they are doing. I urge the Minister to send it back down the corridor and ask them to bury it in a nice big box somewhere.
I reiterate what my noble friend Lord Woodley said. The Minister has said on every occasion that we have considered the Bill that this is not about banning the right to strike, which is a fundamental right. I have no doubt that the Minister will repeat that when he responds to this debate. We face in this country some of the most onerous processes and procedures in order for people to exercise that right through their trade union. The statutory ballot requirements are pretty rigorous and, as the noble Lord has said previously, they can be challenged in court. Unions are very concerned to make sure that they do not breach the law, that they act within the law and that strikes are lawfully conducted.
Here we have a situation where a clause in this Bill could place trade unions in a position where they would be asked to ensure that the members who vote for industrial action—who go through that rigorous process—do not take part in that action. That is not the responsibility of a trade union. A union could face an injunction or be forced to pay damages if it is deemed not to have taken “reasonable steps”.
The noble and learned Lord, Lord Thomas, talked about the definition of “may”. Well, what is the definition of “reasonable steps”? What situation are we putting trade unions in with this vague requirement that could result in them facing legal action? If a union is deemed not to have followed the legislation, the strike could be regarded as unlawful and the protection for striking workers, such as automatic unfair dismissal protection, could be removed from all striking members, including those not named in the work notices. So, employees will not know before participating in the strike action whether they have protection, and unions do not know what amounts to “reasonable steps”, as no detail has been provided in the Bill. I think that is an unacceptable situation. We should not be passing laws that put individuals and trade unions in that position.
Of course, this is not simply my view. The Joint Committee on Human Rights concluded:
“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice. In our view, the Government has not provided sufficient justification for this consequence or explained why the minimum service scheme could not be effective without it”.
I think those are the words—I do not need to say any more. I hope the House will support Amendment 5.
My Lords, I will speak very briefly to both these amendments, which have my name. There might be an argument that the ends justify the means, but this does not deliver the ends. This false promise does not work. The means we are discussing here will poison industrial relations. The means we are discussing here will make recruitment into public services much harder, because working conditions will be made worse. The means we are talking about here will also remove predictability when we have a workplace dispute, because, as has been noted, people will go off sick and refuse to do overtime, and that will make the job of managing through a strike much harder.
The last group talked about protecting employers from this unwanted Bill. This group talks about protecting workers and unions from this unwanted Bill, and I ask your Lordships to support both these amendments.
My Lords, I rise to support Amendments 4 and 5. I will be brief and speak only about Amendment 5. The purpose of the proposed new Section 234E is objectionable, for all the reasons my noble friend Lord Collins has spelled out: the ethical objection to requiring a union to undermine its own otherwise lawful strike. There is a more fundamental point here; this is an elephant trap. The purpose of this provision is to enable employers to get injunctions to prevent unions conducting a strike that has been balloted.
I am reminded that, 44 years ago, I stood at the Bar of this House as junior counsel in a case called Express Newspapers Ltd v McShane and Ashton. Since then, I must have done dozens of strike cases. I know what my learned friends will say, representing employers in the sort of case where this issue arises; they will say that the union has failed to take reasonable steps. The union will produce a witness statement setting out all the steps it has taken, and the employers will say, “Ah, but there’s one step you didn’t take”, and they will say what it was.
This Bill does not say what the reasonable steps are or what factors are to be taken into consideration. That is in contrast, for example, to Section 238A of the Trade Union and Labour Relations (Consolidation) Act 1992; in dealing with dismissals during a strike, it set outs the words “reasonable steps” and says expressly what factors a court is to take into account in determining whether reasonable steps have been taken or not.
This section, as drafted, gives no indication whatever. For example, does it extend to specific encouragement given by the union to particular people named in the work notice? In a big strike such as the teachers’ strike, the union may have been notified of tens of thousands of members on a daily basis who are required to provide minimum service. Does it require the union to threaten to discipline its own members for refusing to comply with a work notice or to expel members who refuse to comply with one? All these matters are to be left to courts to determine and to unions to fight.
If the union is found not to have taken a reasonable step, as my noble friend Lord Collins spelled out, the consequences are that the strike will be unlawful and anybody participating in it will have no protection at all against unfair dismissal. The union will be exposed to a claim for damages; if it does not comply with the injunction or payment of damages, it will be at risk of proceedings for contempt of court. New Section 234E is wholly objectionable and I hope that all Members of the House will join me in opposing it.
My Lords, I thank all noble Lords who have taken part in this debate. Before I address the terms of the amendments, I will first address the frankly ridiculous exaggerations from the noble Baroness, Lady O’Grady, and the noble Lord, Lord Woodley, that the UK is some kind of international parasite or outlier in considering this legislation—
My apologies—I thank the noble Baroness. I meant “pariah”. In terms of being an international outlier, many other countries have minimum service levels. I will give the House some examples. In the USA, ambulance workers are in most circumstances prohibited from taking any action; it is the same in Australia; in Canada, there is variation by province; Spain and France have statutory minimum service levels in ambulance services; Belgium has statutory MSLs. All these requirements are laid down in law.
In the USA, Australia and Canada, for fire services action is prohibited completely by law. Nobody in the UK is suggesting that we go that far. I accept that noble Lords opposite will not mind the example of the USA, but, last time I looked, Australia and Canada both had centre-left Governments. Yet they ban strike action completely in fire services. So the UK is not an international outlier in considering these MSLs. Spain, France and Belgium have statutory MSLs in fire services. I have no idea who is in government in Belgium at the moment—there is normally some sort of 20-party coalition—but nevertheless these are not hard-right Governments with complete freedom of action against workers. It is not unusual in international terms to consider MSLs.
I thank the Minister for answering an allegation that was not made by my noble friend. His point was that we were an outlier or pariah not because we had minimum service levels but because we were the only country with minimum service levels that was applying the sorts of terms and conditions that are objected to in the proposed amendments. That is quite a different thing from the argument about minimum service levels.
I do not think it is a different thing at all. If action is prohibited completely, as it is in the three countries I mentioned—let us take, for example, fire services—there is no provision for workers to take any strike action at all. If they do so, they are in breach of their contracts—presumably they can be dismissed, in those countries. I think the comparison is completely valid.
I turn to the amendments. To achieve a minimum service level, employers, employees and trade unions all have a part to play, in our view, and the Bill makes it clear what those respective roles are. The amendments in this group would remove key parts of the legislation, which we believe are necessary to make it effective, and I suspect that is the aim of those who tabled them. As such, I take the same position as I did in Committee and resist these amendments.
Amendment 4 seeks to remove the consequences for an employee who participates in strike action while being identified in a work notice. The approach taken is both fair and proportionate. It enables employers to manage instances of non-compliance with a work notice in exactly the same way that they would manage any other unauthorised absence. I repeat the point for the benefit of the noble Lord, Lord Collins: this is not about sacking workers, nurses or anyone else. An employee loses their automatic protection from unfair dismissal for industrial action if they participated in a strike contrary to a work notice, as indeed they would lose their unfair dismissal rights if they participated in any other form of strike action that was not in accordance with the law, just as failing to attend work without a valid reason does not necessarily mean that they will be dismissed. It simply enables employers to pursue disciplinary action if they believe it is appropriate, but it is ultimately at their discretion whether or not to do so.
Amendment 4 also provides that individuals identified in a work notice are not subject to the work notice unless they have been given a copy of it, and the employer must prove that the individual has received it. However, under the current drafting, employees lose their automatic unfair dismissal protection for going on strike in contravention of a work notice only if the employer notifies them that they are required to work under a work notice and of the work that they must carry out. I believe that this additional requirement is both unnecessary and duplicative; it could also be inappropriate as workers could be given a work notice which identifies thousands of other workers.
Amendment 5 seeks to ensure that unions have no responsibility for ensuring that their members do not participate in strike action and attend work instead if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I suspect this is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others to go about their lawful business, which is ultimately at the heart of the Bill.
If employees are not incentivised to attend work on a strike day when they have been identified on work notice, or if a trade union has no responsibility to ensure that its members comply, the effectiveness of this legislation will be severely undermined. I suspect noble Lords opposite know that their amendments will do exactly that, and I am sure it is therefore no surprise to them that I cannot support them on this occasion. Given the direct disruption that these amendments will have on the ability of the public to go about their normal, lawful business, I ask noble Lords—without too much optimism—to feel free to not press their amendments.