Employment Bill [HL]

My Lords, in rising to speak from the Liberal Democrat Benches as the last survivor on the Front Bench of the 10 years of employment legislation by this Government—I think that I have spoken from these Benches on every one of the 28 Acts to which the noble Baroness, Lady Wilcox, referred—I cannot resist commenting on the endless schizophrenia that the Tory Opposition seem to have about employment legislation. They never really say whether they are in favour of it, despite the fact that, although the Prime Ministers have not been prepared to admit it because the Daily Mail might not like it, the employment legislation introduced by this Government during the past 10 years has clearly significantly changed the opportunities and rights of workers in this country, very much for the benefit of employees. One day, the noble Baroness, Lady Wilcox, will stand up and say so. As the Minister will realise, I welcome the approach that his department has taken during the past 10 years to legislation, in the sense of bringing it in, having a review to see how it is working and then implementing what the review comes up with. Although the consultation on the Gibbons review has ended, we have not seen the Government’s formal response, except in this Bill. I understand that ACAS has a concern but has not yet commented on the Bill because it is waiting to see the government response to the Gibbons review. I notice that behind the Minister a number of his colleagues are nodding. This is a significant point. On the Liberal Democrat Benches, we broadly support the Bill. We think that the statutory dispute resolution procedures introduced in 2004 were overly bureaucratic. I entirely endorse the intervention made by the noble Lord, Lord Wedderburn, who always puts his point effectively—I was going to say succinctly, but that is not necessarily always the case. He and his colleagues made the point in 2004, which the Gibbons review now supports. It is quite clear that the statutory procedure has proven overly bureaucratic and has acted as a barrier to justice for the most vulnerable. We support the Government’s recognition of that in the Bill. It is sensible to go back to the House of Lords decision in Polkey regarding procedural unfairness. If somebody was dismissed and the procedures were not followed, so that the dismissal would not apply, it is sensible to go back to the Polkey situation, as the Bill does. Stronger enforcement of the national minimum wage must clearly be supported. We also support the provisions of Clauses 14 to 16 on employment agencies. We are against Clause 17; my noble friend Lord Lester of Herne Hill will speak to that and explain why. I do not want to intervene in something that the world’s foremost expert on human rights knows better than me. However, the proposition that a golf club and a trade union should be treated in the same way is slightly bizarre, given the special employment rights that have quite rightly been given to trade unions over the centuries, which do not, of course, apply to golf clubs. The problem with the Bill is that the genie is again out of the bottle. This is the 29th piece of legislation in this area since Labour came into office, which inevitably tempts opposition parties to say both what is wrong with the Bill and what ought to be included in it that is not. This is in a sense a clean sheet of paper, on which we can say what the Bill fails to address. First, on what is clearly missing from the Bill—there will be an opportunity in Committee to introduce amendments to this effect—there is no doubt that the enforcement mechanisms on awards by employment tribunals are defective. I hope that the Government have taken on board the representations made by the citizens advice bureaux on this. It is clear that in significant cases where an employee gets an award there is great difficulty in enforcing it; the costs are often prohibitive. I hope that the Government will look to strengthen the Bill to make it easier for employees with awards from employment tribunals to enforce those awards. Then there is the question of the wider area of enforcement of all employment rights. Citizens Advice has done valuable work on this, demonstrating that it is a problem. According to its figures, some 275,000—mostly low-paid—workers go to citizens advice bureaux with their employment problems. Of them, 165,000 or more—a large number of people—have any problem from the following menu: a denial of the statutory right to four weeks’ paid holiday; denial of statutory sick leave and pay when unable to work due to illness; the reduction, particularly for migrant workers, of already low wages to illegal levels by deductions for accommodation, transport and other services, which are themselves illegal; being required to work 56 or even more hours a week, having been cajoled to opt out of the 48-hour legal limit; summary dismissal due to pregnancy and denial of time off for antenatal care; and the non-payment of wages owed for holiday pay and notice pay when the employee leaves employment. These are not minor problems; each year, 165,000 people are prejudiced in this way. We draw the attention of the Minister to the speech made by John Hutton to the TUC in September 2007. He said that, "““the existence of workplace rights alone is not enough if employers think they can flout the law with impunity … Rights that exist only on paper are not worth the paper they are written on ... we must step up enforcement in workplaces across Britain … to root out the rogues, whichever sector they are in””." A lot of people, including, I think, members of a House of Commons committee, suggested that the mechanism set up for HMRC to deal with enforcement of the national minimum wage could be a model for increasing the opportunity for enforcement of rights for employees. We could have a single gateway for complaints to HMRC, the HSC, the EASI or the GLA—I shall test people on what that means when they want. This is a very significant point and I would welcome the Government’s response on whether they feel that there could be an opportunity in this Bill to create a fair employment commission to enforce these rights on behalf of a very significant number of employees. I cannot resist turning to the difficult issue of agency workers. In a previous debate, the noble Lord, Lord James, touched on potential exploitation by rogue employment agencies. I know that he will speak about his proposals at Second Reading and in Committee, and we will be very supportive. There is also the more fundamental question on how to define in law an agency worker and an employee. There have been two recent cases—Dacas against Brook Street and Cable & Wireless against Muscat—both of which introduced the concept of ““implied”” employment status. That is a significant issue, particularly in relation to whether people who regard themselves as freelancers working on a commercial basis are employees or implied employees. This Bill should provide the opportunity for the Government to define that on the statute book, rather than leaving it to case law, which inevitably gets it right, but only in the end—you often need interested parties to sponsor test cases to force such developments. This could be a missed opportunity if the Government do not introduce clear definitions of what is meant by ““employee”” in this area. Finally, now that there have been 28 Acts and hundreds of regulations, dare I ask whether this is not the moment to have a consolidation of employment legislation?