Employment Rights Bill

Report (1st Day) (Continued)

21:12:00

Amendment 46

Moved by

46: After Clause 22, insert the following new Clause— “Contractual duties of confidentiality relating to harassment and discrimination(1) The Employment Rights Act 1996 is amended as follows.(2) After section 202 insert—“Harassment and discrimination: contractual duties of confidentiality 202A Contractual duties of confidentiality relating to harassment and discrimination(1) Any provision in an agreement between an employer and a worker of the employer (whether a worker’s contract or not) is void in so far as it purports to preclude the worker from making—(a) an allegation of, or a disclosure of information relating to, relevant harassment or discrimination, or(b) an allegation, or a disclosure of information, relating to the response of an employer of the worker to—(i) relevant harassment or discrimination, or(ii) the making of an allegation or disclosure within paragraph (a).(2) Harassment or discrimination is “relevant” for the purposes of subsection (1) if—(a) the harassment or discrimination consists of, or is alleged to consist of, conduct engaged in by—(i) an employer of the worker, or(ii) another worker of such an employer, or(b) the person who is, or is alleged to be, the victim of the harassment or discrimination is—(i) the worker, or(ii) another worker of an employer of the worker.(3) Subsection (1) does not apply to provision in an agreement (an “excepted agreement”) that satisfies such conditions as the Secretary of State may specify by regulations.(4) But the Secretary of State may by regulations provide that any provision in an excepted agreement is void in so far as it purports to preclude the worker from making an allegation or disclosure within subsection (1)(a) or (b)—(a) to a specified description of person;(b) for a specified purpose;(c) in specified circumstances.(5) The Secretary of State may by regulations—(a) provide for this section to have effect as if references to a worker included a specified description of individual who is not a worker as defined by section 230(3) but who—(i) works or worked, or is or was provided with work experience or training, in specified circumstances, or(ii) has entered into, or works or worked under, a relevant contract of a specified description;(b) make provision as to who is to be regarded as an employer of such an individual for the purposes of this section.(6) In subsection (5), “relevant contract” means any contract, other than a contract of employment, whether express or implied and (if express) whether oral or in writing, by which an individual undertakes to do or perform (whether personally or otherwise) any work or services for another party to the contract whose status is by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.(7) Regulations under this section may—(a) make different provision for different purposes;(b) make consequential provision. (8) For the purposes of this section, the holding, otherwise than under a contract of employment, of the office of constable or an appointment as a police cadet is to be treated as employment by the relevant officer under a contract of employment.“The relevant officer” has the meaning given by section 43KA(2).(9) Nothing in this section affects the operation of any other enactment or rule of law by virtue of which provision in an agreement may be void.(10) In this section—“discrimination” means discrimination within section 13, or any of sections 15 to 19A, of the Equality Act 2010;“harassment” means harassment of the kind described in subsection (1), (2) or (3) of section 26 of that Act;“specified” means specified in the regulations.”(3) In section 192(2) (provisions of Act which have effect in relation to armed forces)—(a) omit the “and” at the end of paragraph (e);(b) for paragraph (f) substitute—“(f) this Part, apart from section 202A, and(g) Parts 14 and 15.”(4) In section 193 (provisions of Act which do not apply in relation to the security services), for “section 47B” substitute “sections 47B and 202A”.(5) In section 194(2) (provisions of Act which have effect in relation to House of Lords staff)—(a) omit the “and” at the end of paragraph (g);(b) for paragraph (h) substitute—“(h) this Part, apart from section 202A, and(i) Parts 14 and 15.”(6) In section 195(2) (provisions of Act which have effect in relation to House of Commons staff)—(a) omit the “and” at the end of paragraph (g);(b) for paragraph (h) substitute—“(h) this Part, apart from section 202A, and(i) Parts 14 and 15.”(7) In section 236(3) (regulations subject to affirmative procedure), after “125(7)” insert “, 202A”.”Member's explanatory statement This new clause provides that provision in an agreement between an employer and a worker is void in so far as it purports to prevent the worker making an allegation or disclosure of information relating to certain work-related harassment and discrimination.

My Lords, this amendment is on the important issue of non-disclosure agreements. NDAs have their legitimate purposes, but they should never be used to take unfair advantage of workers and to cover up workplace misconduct. Evidence has emerged in recent years that some employers have been doing just that. I praise the work of campaigners who have brought this evidence to light—notably Can’t Buy My Silence, spearheaded by Zelda Perkins, who has been an impassioned campaigner for change for many years and is one of many brave victims who have spoken up. This evidence shows that some employers exploit the inherent imbalance of power they have with their workers and get NDAs signed, fostering a culture of silence and impunity. I acknowledge the strength of feeling expressed across the House in Committee and thank noble Lords —as well as those in the other place—for raising the evidence for change in Parliament and for their powerful interventions on this issue. I thank in particular the noble Baronesses, Lady O’Grady, Lady Chakrabarti, Lady Kennedy, Lady Morrissey, Lady Goudie, Lady Harman and Lady Kramer. The Government have listened to those calls for action and tabled Amendment 46. This amendment will void any provision in an agreement, such as a contract of employment or settlement agreement, between a worker and their employer in so far as it prevents a worker speaking out about relevant harassment or discrimination. Let me be clear that this amendment will not impact on the legitimate use of NDAs—for example, to protect commercially sensitive information, ideas or intellectual property in business transactions. Relevant harassment or discrimination is defined in line with the existing definitions in the Equality Act 2010 and is conduct which the worker or a co-worker has suffered or is alleged to have suffered, or conduct carried out or alleged to be carried out by the employer or a co-worker—for example, where a colleague tells another colleague that their boss has sexually harassed them. This will mean that workers who have experienced harassment or discrimination can speak up, as well as those who have witnessed misconduct or who have knowledge of it.

21:15:00

The amendment will render void NDAs which prevent workers speaking out about their employer’s response to the relevant harassment or discrimination or an allegation relating to it—for example, where an employer fails to investigate an allegation or where a worker has received poor performance reviews or has had to suffer poor conduct as a result of them speaking out about being harassed.

We understand that there may be cases where workers want confidentiality. We are therefore taking a power to define in regulations when the NDA will not be void. These regulations will set conditions aimed at protecting workers, ensuring they have a greater say in whether they want an NDA and an understanding of what they are agreeing to. This will help address the imbalance of power between workers and employers. In addition, in instances where a worker enters into an NDA meeting these conditions, the Government intend to specify in regulations who workers can still speak to about their experience. This may include, for example, a doctor or a lawyer.

Finally, the amendment includes a power that will allow us to extend this new legislation to other individuals, such as certain self-employed persons. These matters would be subject to consultation first, to ensure we get things right and listen to employers and workers. This amendment draws on legislation that commenced in Ireland last year, but goes further in certain important respects—for example, by extending rights to workers who experience relevant harassment and discrimination, not just at the hands of their employer but from third parties such as clients and customers of an employer. It is, if you like, Ireland-plus.

This world-leading amendment will give millions of workers confidence that inappropriate behaviour in the workplace will be dealt with and not hidden. We are proud to be a Government who are ending the appalling practice of NDAs being misused to silence victims of harassment or discrimination.

Once more, I thank Members of this House and those in the other place for their work advocating for reform in this area, including by tabling amendments to this Bill. I also thank Zelda Perkins—who I think was in the Gallery earlier this evening—for her tireless campaigning for reform. I was delighted to meet her earlier today to be able to discuss this important amendment. The Government look forward to working with her closely as we develop the regulations and, in turn, implement this important reform. This is a huge milestone. I beg to move.

My Lords, I will speak to all three amendments in this group, the second two of which are in my name. I begin by thanking the Government for listening to and acting on the concerns of victims of harassment and discrimination, who have risked so much by speaking out for justice despite being bound by non-disclosure agreements. The Government’s Amendment 46 brings in radical change, as the Minister has described. I join the Minister in particularly mentioning Zelda Perkins of Can’t Buy My Silence; behind her have been other civic society groups, which have been unfailing and determined, and have refused to be discouraged. I congratulate MPs who spoke out in the Commons. In this House, I was very glad that the Minister mentioned the names of the many noble Baronesses across the Benches who have been involved. I know that the noble Baronesses, Lady Kennedy, Lady Morrissey and Lady Chakrabarti cannot be here today. We had all expected the amendments to come up on Wednesday, so with this sudden change of plan, they are here in spirit and will continue to watch over this legislation. I also think she was right to take note of the engagement by the noble Baroness, Lady O’Grady, because her years leading the trade union movement gave the Government the confidence they needed to take action. For that, we always remain respectful and grateful. The Government will face a complex task in fashioning the regulations which must underpin this clause. Some NDAs, for example, are designed to protect children who are third parties in an event from disclosure of very personal details. This is complex and not easy issue. Those of us on these Benches will be watching very closely as the regulations are developed. However, there is a key weakness in the proposed clause, which I am aware the Government cannot tackle in this Bill because of its scope. The clause and its protections apply only to workers and, indeed, to a narrow definition of workers which sits within the pre-existing legislation on disclosure. So, for example, a would-be actress interviewed by Harvey Weinstein would not be covered because she is not within the definition of worker. Now, an employee of Weinstein’s company could safely speak out on her behalf with this new legislation—that is the Zelda Perkins example—if they had witnessed harassment, so it is a real improvement. However, the clause does not protect a job applicant, a company director, a self-employed contractor or a supplier—although I know the Government are looking at this issue—even though all of these people could lose their careers or sometimes their businesses by speaking out. We on these Benches will not stop this particular weakness preventing us supporting this amendment. We thoroughly do. However, it illustrates just how much more reform is needed to have a fully workable and effective framework for all people to speak out—and that leads me to the two other amendments in this group. Amendment 95, in my name, would set up an office of the whistleblower to protect whistleblowers, oversee whistleblowing processes and enforce compliance with standards. It would bring redress against detriment, it would cover everyone—worker or not, public or private sector—and deal completely with the weaknesses in the NDA clause. I thank WhistleblowersUK and the numerous KCs who helped draft it. It really has had the work of some of our leading lawyers. The office would act on a hub-and-spoke basis with existing regulators and investigators, almost all of whom are keen to see it in place because it delivers them the whistleblowing they need to be effective and to make the best use of their limited resources. Whistleblowers tell you where in the haystack to look and provide information from the inside that enables regulators, investigators and enforcement agencies to take action. The Government are also committed to a duty of candour. I know there has been a bit of a hiccup this week, but the Hillsborough Law Now action group, which works so hard on duty of candour, will also tell them that the duty works much better if it is complemented by an office of the whistleblower, which then gives protection against detriment to those who do speak out as they should. The office is also not an expansion of regulation; Ministers have said it is, but it is not. It streamlines existing processes and provides mechanisms to enforce existing regulations, laws and sanctions. Experience in the US demonstrates that an office of the whistleblower becomes a major deterrent to bad actors. We would all want that. The US experience also suggests that the office would pay for itself within two years from recouped moneys and prosecutions, and then contribute substantial funds to the Treasury. I recognise this is not the perfect Bill in which to place this reform, so I am looking to the Government to reassure me that they are seizing the issue. I hope that we are going to hear from the Minister in closing that the Grant Thornton review of the whistleblowing framework will be made public shortly. However, given that the terms of reference for that report were so narrow, I am also looking for a commitment to seriously —and in a timely way—progress to proper whistleblowing protection. The third amendment in this group is Amendment 96 and was drafted by the noble Lord, Lord Willis, together with the civic society group Protect, and signed by him, me and the noble Baroness, Lady Morgan of Cotes. Neither the noble Lord nor the noble Baroness can be here today, so in a sense I am voicing for them. This amendment is an interim attempt to patch up some of the worst gaps in the present legislation we have on disclosure and whistleblowing until we get broader reform. It gives the Secretary of State powers to expand the range of unfair dismissal. Often, someone is a recognised whistleblower but the employer says, “No, we’re actually dismissing you because you’re not a good team player”, and it puts the whistleblower into an impossible position in the context of the employment tribunal, so that is exactly why this change is necessary. It also requires employers to take reasonable steps to investigate disclosures. I know the noble Lord, Lord Willis, cannot conceive why the Government have not agreed to this amendment and it may be that he will be keen to test the opinion of the House if there is no significant reassurance that we can get some quick movement to try to deal with some of these most egregious circumstances. I have said that, if he cannot be present on Wednesday, when the issue would possibly come to a vote, I will act on his behalf. Let me close by congratulating the Government. I hope that this strive forward on NDAs will make the Government eager to seize the whole whistleblowing agenda. The Government have already heard the acclamation, the congratulations and the real pleasure that the nettle has been grasped on an issue which is difficult and the Government have made a very significant change. However, surely we cannot allow a repeated flow of scandals, criminality and cover-up to both sully our country and cost so many so dear. I say to the Government, “Bravo for all you have done and, moving forward on the rest, please act—and act soon”.

My Lords, it is real pleasure to follow my noble friend Lady Kramer and to add my strong support to my noble friend the Minister and the Government’s Amendment 46 on non-disclosure agreements. This will make the UK a world leader in legislation to end the silence around workplace harassment and discrimination. Neary 10 years ago, the TUC conducted the biggest survey of its kind in Europe, which found that half of all women had experienced sexual harassment at work, and that figure rose to two-thirds of young women. Women on insecure contracts, including agency and zero-hours contracts, were the most vulnerable of all. Too often, women subjected to harassment felt they had no choice but to leave their jobs, risking their careers and livelihoods. Meanwhile, too often, the perpetrator remained in post, free to harass others. I will always remember one young woman who quit her job after increasingly disturbing comments made by her boss. At her leaving party, he told her that his only regret was that he had not had the chance to get her in the store cupboard and rape her. This is why many of us believe so strongly that harassment is not a joke or a bit of banter, and is not to be trivialised. Whether it is racism, sexism or any other form of prejudice and discrimination, it is an abuse of power that has real-life consequences for those who suffer it. Settlement agreements with non-disclosure clauses compound the lack of power that many of those subjected to harassment feel. This amendment is about protecting the free speech of victims and witnesses to harassment. This new right will not stop the use of settlement agreements, but it will stop them being used to gag victims. It puts the victims of and witnesses to abuse in the driving seat. They can decide whether they want to talk about the experience and who they want to talk to. That should give every perpetrator pause for thought. As well as noble Lords on all sides who have supported this amendment—I see the noble Lord, Lord Cromwell, too—and our own Minister, the noble Baroness, Lady Jones, I also congratulate the Deputy Prime Minister, Angela Rayner, the Employment Minister, Justin Madders, and the brilliant Lou Haigh MP for championing this change. Like others, my last word of praise goes to all those campaigners, and certainly not least to Zelda Perkins and the campaign Can’t Buy My Silence. Zelda broke her silence eight years ago, and ever since has spoken up fearlessly on behalf of victims and survivors. I am so very proud. We will still be watching, but I am so very proud that this Labour Government have really listened.

21:30:00

I will speak very briefly on the three amendments. I am very grateful to the noble Baroness, Lady O’Grady, for namechecking me among the illustrious supporters. First, on government Amendment 46, I have been going on about NDAs and whistleblowers for a long time over the years and it is great to finally get to a day where we have legislation that is actually gripping it. I agree with the reservations of the noble Baroness, Lady Kramer, about it applying to workers only—but, my goodness, this is a substantial beachhead into a problem that is long overdue for settlement. I support Amendment 96. The unfair dismissal aspect is so obvious that I do not think it needs any words from me. In particular, I am interested in supporting the duty to investigate side of it. I often say that Parliament loves to make laws and then never resources the enforcement of them. Organisations love to make policies about whistleblowing—to coin a phrase, “big, beautiful policies” about whistleblowing. The trouble is that, when it comes to somebody actually trying to whistleblow in practice, the reception is very often the three Ds: delay, dismiss and deny. This amendment gives the opportunity to remove something that is not only unfair to the individual employee but is corrosive of business efficiency and a betrayal of investors’ interests in whatever the business or organisation is. I remind the House that whistleblowing is not just about sexual harassment, vitally important though that aspect is. It can be about criminality of a whole range of kinds which, if not revealed, is very corrosive to business and damaging to investors, who take a keener interest than some people realise in whistleblowers. To bring a duty to investigate will be a great step towards resisting the temptation and ability to cover up issues brought up by whistleblowers. Finally, on Amendment 95, the noble Baroness, Lady Kramer, has very long championed the office of the whistleblower. For all the reasons we have discussed tonight, it is of benefit to whistleblowers and organisations to have this office put in place. There is such a lot of work to do in terms of their knowledge and support, with so much need out there. I do not think I need say any more; I am just very happy to once more support the enthusiasm of the noble Baroness, Lady Kramer, for the office of the whistleblower.

I very much thank the Minister and her officers for all the time they have given us over the last year in being able to get this clause on the statutes tonight. I also thank my colleagues in the other place, in particular Lou Haigh and the Deputy Prime Minister, Angela Rayner, for the work they have done and encouragement they have given us in this House to continue with the campaign. I also thank the Diversity Project and Zelda Perkins’s group for their work with us over a longer time than we have today. Non-disclosure agreements need to be properly regulated and not permitted to continue in the way they have been, with their chilling effects. This is especially so when the disclosure ban applies to the context of an employee and an employer and relates to harassment, bullying or discrimination, including impartiality and sexual harassment, which is one of the worst things that can happen to anybody and ruins their life completely. I am really grateful to everybody who has been kind enough to work with me over these months and years.

My Lords, I speak on behalf of my noble friend Lady Kennedy, who, due to recent surgery, cannot be here this evening, but also on behalf of other women around the House, all of whom have pressed for amendments on the issue of NDAs being used to silence women who experience sexual harassment in the workplace. I know that my noble friend Lady Kennedy worked closely with the courageous Zelda Perkins on her campaign to change the law. We all want to pay tribute to our noble friend the Minister for the vital role that she has played in bringing the Government on board to change the law with the amendments—our warm congratulations to the Minister.

I congratulate the Government on this excellent amendment, and I join the thanks to Zelda Perkins and her colleagues for their tireless efforts to bring it to this point. I have a few questions for the Minister about the Government’s intentions, or present thoughts, regarding the secondary legislation. In particular, is it right that employers will not be permitted to suggest confidentiality? Will there be mandatory independent legal advice? Will confidentiality be time limited, or at least have an opt-out? Will the excepted individuals to whom the victim can speak include someone the victim knows, a friend or a relative, not just independent professionals? Will non-disparagement clauses also be caught by this amendment?

My Lords, this has been a very important debate and I thank the Minister, the noble Baronesses, Lady O’Grady of Upper Holloway, Lady Goudie and Lady Ramsey of Wall Heath, the noble Lord, Lord Cromwell, and my noble friend Lord Lucas for their contributions. In particular, I congratulate and thank the noble Baroness, Lady Kramer, especially for Amendments 95 and 96. They are vital and long overdue, and I support them very strongly indeed. They strike at the very heart of what it means to have a fair, transparent and accountable workplace. Too often, whistleblowers have faced retaliation, dismissal and isolation, not because they have done anything wrong but because they have identified where something has been severely wrong. That is a moral failure in our system, and it is one that this House must now move to correct. Workplace harassment, abuse, corruption and mismanagement are not minor private inconveniences to be swept under the carpet but serious matters of public interest. It is precisely in the public interest that these amendments redefine what constitutes a protected disclosure and establish an independent office of the whistleblower. As the noble Lord, Lord Cromwell, just pointed out, this new body would be more than just symbolic. It would enforce real standards, offer real protections and provide real redress for those who are brave enough to come forward. It would finally send a clear signal to employers that retaliation is no longer ever going to be tolerated and that burying the truth behind legal threats and non-disclosure agreements has to stop. It is particularly important that these protections extend to disclosures around violence, harassment and abuse in the workplace. These are areas where silence is too often enforced and where whistleblowing can save others from further harm. I urge the Government to take this opportunity to stand firmly on the side of transparency, accountability and justice.

My Lords, I thank all noble Lords for their support for our amendment. I assure your Lordships that we will follow it through to full implementation. The noble Lord, Lord Lucas, asked a number of specific questions. There will be further consultation on the regulations, but I assure all noble Lords around the House of the Government’s absolute determination to get this and the regulations on to the statute book. I know that noble Lords will hold our feet to the fire; I will be doing that as well, to my own Government. We will deliver on this. Moving on to Amendments 95 and 96, whistleblowers play an important role in exposing wrongdoing and malpractice in the workplace. It is vital that workers are able to come forward with concerns without suffering adverse treatment by their employer. That is why whistleblowers have been protected from dismissal and detrimental treatment under the Employment Rights Act since reforms were introduced in the UK in 1998 through the Public Interest Disclosure Act. However, some time has passed since these world-leading reforms were introduced. The Government acknowledge concerns from noble Lords and others that the whistleblowing framework may not be operating as effectively as it should be. That is why we are taking a range of actions to strengthen the framework. Through the Employment Rights Bill, we are introducing a measure that will expressly make sexual harassment the basis for a protected disclosure. This will provide welcome clarity for workers and have wider benefits, including encouraging more workers to speak up about sexual harassment by using whistleblowing routes. The measure will signal to employers that workers who make protected disclosures about sexual harassment must be treated fairly, as workers will have legal recourse if their employer subjects them to detriment as a result. Additionally, we have committed to implementing professional standards for NHS managers to hold them accountable for silencing whistleblowers or endangering patients through misconduct. Most recently, the Government amended the Public Interest Disclosure (Prescribed Persons) Order 2014 to allow workers to make protected disclosures to relevant government departments on suspected breaches of sanctions. These changes will help workers to qualify for employment protections when disclosing information on financial, transport and other trade sanctions to government and to seek redress should they suffer detriment or dismissal due to making a protected disclosure. The amendments proposed in this group would make substantial changes which should be considered as part of a broader assessment of the operation of the whistleblowing framework. For example, the amendment that would create an office for the whistleblower would introduce a significant structural change to that framework. The Government also note that there are differing views among stakeholders about the role of a new body. However, as an indication of the continued movement in this space by the Government, I am pleased to announce that the Government are today publishing the research report on the whistleblowing framework, which was undertaken by the previous Government. The report provides observations and insights about the operation of the whistleblowing framework, obtained from stakeholder engagement, and a literature review, which will be a positive contribution to debate. The Government look forward to engaging stakeholders about that report and the proposal for reform. On that basis, I ask the noble Baroness, Lady Kramer, not to press Amendment 95.

I beg the Minister, if I might, for a letter in response to my questions. I quite understand that she cannot answer them now.

I am sure that we can write and provide some clarification on that. I commend Amendment 46 to the House.

Amendment 46 agreed.

Amendment 47

Moved by

47: After Clause 22, insert the following new Clause— “Duty to prevent violence and harassment in the workplace(1) Section 2 of the Health and Safety at Work etc. Act 1974 (general duties of employers to their employees) is amended as follows.(2) After subsection (2)(e) insert—“(f) the adoption of proactive and preventative measures to protect all persons working in their workplace from violence and harassment, including—(i) gender-based violence; (ii) sexual harassment;(iii) psychological and emotional abuse;(iv) physical and sexual abuse;(v) stalking and harassment, including online harassment;(vi) threats of violence.”.(3) After subsection (3) insert—“(3A) It shall be the duty of every employer to prepare, and as often as may be appropriate revise, an assessment to identify potential risks of violence and harassment in the workplace and implement policies and procedures to eliminate these risks so far as is reasonably practicable.(3B) It shall be the duty of every employer to provide training to all employees on recognising and preventing violence and harassment in the workplace, with a focus on gender-responsive approaches.(3C) In subsection (3B) a “gender-responsive approach” means taking into account the various needs, interests, and experiences of people of different gender identities, including women and girls, when designing and implementing policies and procedures.(3D) In this section, “persons working in the workplace” includes—(a) employees,(b) full-time, part-time, and temporary workers, and(c) interns and apprentices.(3E) In subsection (2)(f) and subsections (3A) and (3B), a reference to the workplace includes remote and hybrid work environments.”.”Member’s explanatory statement This new clause would amend the Health and Safety at Work etc. Act 1974 to place a duty on employers to protect all those working in their workplace from gender-based violence and harassment.

My Lords, I will also speal to my Amendment 48. I have tabled these amendments to address a critical and long-standing gap in how we protect workers from sexual harassment and gender-based violence in the workplace. They are, at their heart, about prevention and ensuring that employers have a proactive duty to make workplaces safer, and that the Health and Safety Executive has a clear, enforceable role in holding them to account. As we all know, prevention is better than cure. They seek to amend the Health and Safety at Work etc. Act 1974 to place an explicit duty on employers under the oversight of the HSE to prevent workplace harassment and violence, including sexual harassment and gender-based abuse.

21:45:00

We had an important debate on these amendments in Committee, and I am grateful to the noble Lord, Lord Russell, and the noble Baroness, Lady Jones, for joining me in making that the case and thank the noble Baroness, Lady Kramer, for her thoughtful and supportive response from the Liberal Democrat Benches. I also thank the Minister for her engagement since then, including, most recently, two meetings that the Safeguarding and Violence Against Women and Girls Minister, Jess Phillips, also attended. I appreciate those conversations and believe that they are moving in the right direction.

However, despite the Government’s assertion that the current regulatory framework is strong and appropriate, I remain unconvinced, and I am not alone in that view. The organisations supporting the intention behind these amendments—front-line services, legal experts and trade unions—believe, as I do, that the status quo is inadequate and reactive. It too often leaves survivors carrying the burden of enforcement long after the harm has already been done. Let me be clear: the police cannot enforce prevention; they act after the event. As I outlined in my recent letter to the Minister, conviction rates remain shockingly low: just 1.8% of stalking cases reported to the police last year led to a conviction.

We know that workplace-specific abuse is not being recorded. Freedom of information responses show that only two police forces reported any cases of workplace sexual harassment at all—just seven cases in an entire year. That is not a credible enforcement pathway. Likewise, the Equality and Human Rights Commission, while an important body, is constrained. It cannot fine; it also does not cover other forms of gender-based violence, such as domestic abuse and stalking, when they spill over into workplaces, as we know that they often do. An automatic investigation of breaches of the prevention duty under the Worker Protection (Amendment of Equality Act 2010) Act 2023 does not take place unless a survivor wins a sexual harassment case.

By contrast, the Health and Safety Executive is already present in workplaces. It already regulates employers and imposes significant penalties when health and safety obligations are breached. If two care homes in Wales can be fined £400,000 for failing to manage risks of violence from patients, why should a multinational corporation be let off with a warning letter for failing to protect its employees from sexual harassment? I am not asking for the reinvention of the wheel. I am asking that an existing regulator be given a clear mandate to address a risk it already recognises, using powers that it already holds.

The UK has ratified the ILO Convention No. 190, which obliges us to ensure that employers take appropriate steps to prevent violence and harassment at work, including gender-based violence. These amendments would help us to fulfil that obligation, not in theory but in practice. These amendments have been drafted with the legal and sectoral expertise of the Suzy Lamplugh Trust and Rights of Women. They are backed by over 20 trade unions, specialist organisations and front-line charities, including the End Violence Against Women Coalition, White Ribbon UK, Unite Hospitality and the TUC Young Workers network.

These are voices that we should listen to, not only because they represent workers but because they are already doing the work that the Government have, so far, failed to do. This is especially clear today, when an inquiry has upheld 45 allegations made against the “MasterChef” presenter Gregg Wallace. While 11 complaints had been made to the employers, the BBC and the production company, unacceptable behaviour—from sexually explicit comments to unwanted touching to being in a state of undress—was allowed to continue for nearly 20 years with no real repercussions. These workers were not protected by the current regulatory framework; their workplace was unsafe.

This is not a marginal issue; it is about the safety and dignity of workers, who are disproportionately women, young and in precarious or public-facing work. We all know those women: they are my friends, your daughters and the people who we pass on the street every day. We owe them a system that is not just reactive but preventive, not just principled but enforceable.

I hope that the Government will reflect carefully and support the intentions behind these amendments, because silence or inaction in the face of systematic workplace harm are unacceptable. It is complicity. I beg to move.

My Lords, I am going to speak very briefly, because the noble Baroness, Lady Smith of Llanfaes, has given such an effective speech, which outlines the issue, and the hour is late. When she first came forward with the proposal for the Health and Safety Executive, I thought, “My goodness, here is a body that could effectively deal with harassment and violence in the workplace, because it knows how to respond very quickly to situations that put people into an unsafe set of circumstances”. I suspect that, when the HSE was first put in place, sexual harassment and violence were probably considered somewhat acceptable, or they were domestic or private. They were certainly not something that an employer or workplace should be concerned about. Well, times have changed and we no longer look at it that way. It is therefore entirely appropriate to update the HSE’s role to take on these issues. It is very easy to see how effective that organisation could be in closing down both harassment and violence. It is a respected organisation; people in a workplace know that it will act and it will enforce. Those kinds of behaviours make a great difference to the whole culture within the workplace. So I thought that this was an ingenious approach, which I very much want to back, because we all want to stop violence and harassment and here is a mechanism that does that with very little change to the existing organisational structures, but by giving power and responsibility to an organisation that has the capacity to deal with the problems effectively.

My Lords, I will speak very briefly. It is a great pleasure to follow the noble Baroness, Lady Kramer, who very powerfully made the case for Amendment 48. I am going to focus on Amendment 47. The noble Baroness, Lady Smith of Llanfaes, has already made the case for that very powerfully, but I will add one very recent set of statistics to it. The noble Baroness mentioned unions and, just last week, Unite put out a study that polled women across the 19 sectors of work that it covers. It found—these figures are truly shocking—that a quarter of respondents said that they had been sexually assaulted at work, in a workplace-related environment or on the way to and from work. Some 8% said that they had been a victim of sexual coercion at work. This is the sort of situation that was referred to by the noble Baroness, Lady Smith. People are in insecure employment and zero-hours contracts, which the Government are doing something about—perhaps not quite enough but something. If you are in a situation where you desperately need those hours and the supervisor decides where on the rota you are and how many hours you will get, that puts the supervisor in an incredible position of power, which can and clearly is being abused. What is really telling is that 56% of respondents said they had heard a sexually offensive joke at work and 55% had experienced unwanted gestures or sexual remarks. I am sure the government response will be to tell us that they are taking measures to react, but, crucially, Amendment 47 sets out a responsibility to prevent it happening. This really needs to be regarded as a public health measure. We hear often in your Lordships’ Chamber about the issues around mental health and well-being and the problems we have in our society. If you are forced to keep going into a workplace that is actively hostile to you, with gender harassment and abuse, then that will be very bad for you and for the company. As a society, we should not tolerate it.

My Lords, I thank the noble Lords who have contributed to this debate, and in particular the noble Baroness, Lady Smith of Llanfaes, for introducing it. We must, of course, recognise that violence and harassment in the workplace are unacceptable in any form. It is also important to acknowledge that women, particularly in certain sectors, are often at greater risk and may face additional barriers to speaking out or seeking redress. This amendment raises serious and pressing concerns about how we ensure that all workplaces are safe, inclusive and free from abuse. The call for more proactive duties on employers and greater involvement from the Health and Safety Executive is one approach to addressing these challenges. However, as with any proposed legislative change, it is right that we consider carefully the potential implications, including how such duties would be enforced, the capacity of the Health and Safety Executive, and how we balance existing legal protections with any new obligations we would place on employers. I am very interested to hear what the Minister has to say on this point, particularly with regard to how the Government see the role of regulation, guidance and support in preventing workplace violence and harassment. In Amendment 47, my interest was piqued by subsection (3C) to be inserted by the proposed new clause, which refers to “gender identities, including women and girls”. That seems to me to stray dangerously on to Supreme Court territory, which, as I understand it, we have yet to hear the EHRC’s guidance on. It strikes me as a tad premature, but I am interested to hear what the Minister has to say on it.

My Lords, I thank all noble Lords who have contributed to this short debate, and I thank the noble Baroness, Lady Smith of Llanfaes—I apologise if I have mispronounced that—for tabling these amendments. I reassure her that the Government are fully committed to protecting workers from workplace violence and harassment, in particular gender-based violence and harassment. The current strong regulatory framework ensures that workers are protected from such risks. Employers currently have a clear duty to protect their workers from health and safety risks under the long-established Health and Safety at Work etc. Act 1974 and the statutory provisions made under it. That includes taking action to prevent workplace violence. They are required to assess those risks and take appropriate steps to eliminate or reduce them. As part of this existing regulatory framework, the Management of Health and Safety at Work Regulations 1999 require employers to assess risks that arise from work activity, including the potential for violence, and take suitable action to reduce or eliminate those risks. The Health and Safety at Work etc. Act 1974 and its associated regulations cannot be used for issues that arise outside of work activity, as that would result in the Health and Safety Executive operating ultra vires. The HSE and local authorities, which are responsible for enforcing the Health and Safety at Work etc. Act 1974, take both proactive and reactive measures to ensure that employers are complying with their duties. This includes ensuring that employers assess risks and implement appropriate measures to protect their workers and anyone else affected by their work from workplace violence. The HSE has also published accessible guidance on its website to help employers comply with their legal obligations. In the noble Baroness’s proposal, there is a request for the HSE to publish a health and safety framework specifically focused on violence and harassment in the workplace. However, this framework already exists as employers have duties under the Management of Health and Safety at Work Regulations to ensure they have sufficient arrangements in place to manage health and safety risks arising out of work activity, including violence and aggression. Where an employer is found to have breached health and safety law, the HSE does not have powers to issue fines. When a significant breach is identified and the case meets the threshold for prosecution under the Code for Crown Prosecutors, the HSE brings employers to account through the criminal justice system. It is then for the courts to decide the penalties subsequently imposed if an employer is found guilty of such offences, and any fine imposed by the courts goes directly to His Majesty’s Treasury.

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Although harassment in the workplace could be addressed under the Health and Safety at Work etc. Act, it is the HSE’s long-standing policy not to intervene where there is a more appropriate regulator or where more directly applicable legislation exists. The protection provided by this regulatory and policy framework overlaps, with the most relevant organisation taking the lead on specific issues. A preventive duty for employers in relation to sexual harassment in the workplace already exists under the Equality Act 2010. A recent amendment to the Act came into force on 26 October 2024, requiring employers to take proactive measures to prevent sexual harassment in the workplace. This provision is enforced by the Equality and Human Rights Commission. When harassment offences are committed in the workplace, the Protection from Harassment Act 1997 provides the police with the authority to prosecute such offences. Additionally, the EHRC can take action under the Equality Act 2010.

I hope this will reassure the noble Baroness that the current legal framework for addressing violence and harassment in the workplace is both robust and comprehensive. The Government remain committed to raising awareness on this important issue. Tackling violence against women and girls is a top priority for this Government. Our manifesto included the ambition to halve it in a decade. We are going further than before to deliver a cross-government, transformative approach to halve violence against women and girls, underpinned by a new violence against women and girls strategy, which we hope to publish sometime in September. The principles of preventive action, which are captured in the noble Baroness’s amendment, are key to ending violence against women and girls. The Government will continue to have conversations with the noble Baroness and others on this important issue as we pursue our target of halving violence against women and girls in the next decade.

I want to answer two quick points. One is on third-party harassment. Currently Clause 20 will introduce an obligation under the Equality Act 2010 on employers not to permit the harassment of their employees by third parties in the course of the employment. The other is on sexual harassment. We are supporting effective implementation of the new duty under the Equality Act 2010 on employers to take reasonable steps to prevent sexual harassment of their employees. As I said earlier, that came into force on 26 October. Given the adequacy of the protections provided by existing legislation, I therefore respectfully ask the noble Baroness, Lady Smith, to withdraw Amendment 47.

I thank the Minister for his answer. I must admit that that answer does not counter the fact that the burden of proof remains on individuals rather than employers. I have previously shared a number of cases where, for example, big companies have had lots of media attention around lots of harassment claims but have only received a warning letter from the EHRC, in comparison with other businesses—for example, the two care homes whose cases I shared—that are treated very differently. So I am not convinced that what we currently have in regulation actually makes a difference to individual workers who are experiencing these incidents in their workplace. However, I am grateful to the Minister for recognising the importance of prevention and that there is more to be done. So, on this occasion, I will withdraw my amendment, but we will be pressing this with the Government further. I will welcome the opportunity to look at this, particularly when the VAWG strategy is published in September. However, I must remind the Government that there has to be a cross-departmental approach. It should not be up to just one department to set it out; there is also a responsibility for this department to use all the options it has. Just doing good is not good enough—why cannot we try to achieve the best outcomes for these workers? On this occasion, I beg leave to withdraw my amendment.

Amendment 47 withdrawn.

Amendment 48 not moved.

Consideration on Report adjourned.

House adjourned at 10.06 pm.