Employment Bill [HL]

I am grateful to noble Lords who have spoken in this debate, not least to the noble Lord, Lord Razzall, for proposing the amendment—but also to the noble Lord, Lord James. It is good to see him come out from the outer darkness and back into the light of the Moses Room, to make a contribution which I know he feels very strongly about. We have had some useful discussions about it and I do not think that we have heard the last from him on this matter in this Bill. I do not think that the noble Lord, Lord Razzall, will be that amazed when he hears that the Government cannot accept the amendment. Let me put it this way. We believe that working individuals must be appropriately protected, and it does not matter whether they are self-employed, employees or workers. As I said in the last debate—there are points of equivalence between the last debate and this one—changing working patterns mean that there are now more and different types of working arrangements than there used to be. It has been necessary on a number of occasions for the courts to decide whether an individual is entitled to a particular employment right. Over many years, the body of employment law has been, and is being, adapted and refined in the light of changing working arrangements. The noble Lord knows that the Government carried out a four-year review between 2002 and 2006 that examined both the rights of workers and employees and their differing responsibilities. The results of the review were published as part of the Success at Work labour market strategy paper in March 2006. The review concluded that the present legal framework reflected the wide diversity of working arrangements and different levels of responsibility in different employment relationships. Changes to the legal framework would not prevent instances of abuse or lack of awareness of existing rights, which were highlighted as problems in the evidence to the review. I do not apologise for using these phrases; it could reduce overall employment and damage labour market flexibility, which is one of the reasons why our employment rate is so high at present and is higher than it has ever been before. The courts have developed a number of tests that examine an individual’s circumstances and consider all aspects of the relationship, including the reality of the situation, to establish an individual’s employment status. The amendment is looking to enshrine common law tests for employment status in statute. It would be difficult, and potentially very confusing, to attempt to cover all types of working arrangements in legislation, particularly in such a fast-moving, changing environment. Once a court judgment on a particular type of arrangement has been made, and not successfully appealed, that interpretation stands. Case law is, in effect, proving to be a flexible tool. The noble Lord raises important issues, and I want to offer him the same courtesy that I offered my noble friend on the last amendment. He and his colleagues can meet my officials to talk through his proposals a bit further. He said that this is a probing amendment; perhaps he would like to probe it further with them outside the Committee.