Barry Gardiner
MP for Brent West · Labour · United Kingdom
“Sir Desmond, imagine that the top brains in the country’s security and intelligence community produced a report that told you how to save the world. You would want to see it, right? Well, the report we are discussing is not about how to save the world; it is about what happens if we do not.”
“The nuclear threat will rise as clashes between nuclear powers become more frequent. Those are the cold assessments of the Joint Intelligence Committee. The Government were right to think that those assessments might scare people—they scare me—but they were wrong to think that they could hide them from the public.”
“The Minister will know that the grant structure on which UKRI is based gives out grants for a maximum of three to five years. Very few are for five years—most are for three years or under—yet the sort of long-term scientific development that my hon.”
“My hon. Friend is making a superb case for the importance of funding for her deep earth facility. I had the privilege of going to the National Oceanography Centre’s deep oceans facility, and the innovative science there on carbon sequestration is superb.”
“The Prime Minister has spoken powerfully about the devolution of power and giving back control. Will he therefore ensure that the proposals for commonhold and leasehold reform, for which 5 million leaseholders in this country are waiting with bated breath, do give that power and control back to those people, through the right to enfranchi…”
“We know how much land there is in the UK, and we know the extent of our inland waters and seas, so we can know how much we have to do to protect them, as we are required to do by target 3 of the global biodiversity framework.”
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“I will in just one moment, particularly because that is the hon. Lady’s constituency. This was a complete breach of health and safety protocol. When news like that is given to an employee, the regulations say that the person should be given the rest of the day off on full pay to think through what they have been told and to seek advice. That was Tesco.”
“I am very grateful to the hon. Lady. Fire and rehire is happening all over our country. We must act. Sainsbury’s, Argos, Asda, Tesco—they are all at it. Profitable companies are doing this to hard-working people. For me, the most upsetting of all was when a worker’s eyes welled up and he started to cry, as he recounted how he felt telling his family that he was to be fired. His voice faltered when he said, “It was just so humiliating.””
“Wherever this happens, it is wrong. It does not matter whether it is the private sector or the public sector, it is wrong and families are suffering because of it. That is why it is incumbent on us all not to play party politics with this, but to act.”
“I am grateful to the hon. Gentleman for his intervention, and let me tackle it head on. The survey by Britain Thinks, of 2,321 people, showed that 9% of workers said that in the previous nine months they had either been fired or rehired, or they had been threatened with being fired and rehired. If one were to extrapolate that 9% across the workplace, which I do not seek to do, it would be 3 million workers. Let us say it is half that number—we are still talking about 1.5 million workers. Let us quarter it—it is still three quarters of a million workers in this country. This is a serious problem. I also want to address the other element of the hon. Gentleman’s remarks. I have been on a demonstration picketing with workers outside a Labour council. A Labour council has done this in Tower Hamlets, and shame on it.”
“Again, I am grateful to the hon. Gentleman. I am sure he will also have noticed that that survey was sent out by the institute to 160,000 of its members, and it asked whether those members had ever engaged in fire and rehire, how they had used it, and how they had sacked people in the previous nine months. Does he recall how many people replied to the survey? It is there—”
“It was circulated to 160,000 members, and 225 wanted to reply. In my view, that says everything about the way this is being used by personnel departments.”
“I entirely agree with the right hon. Gentleman. It is a matter of principle. That is why I think Members across the House have said what they have about the evils of fire and rehire. The human cost of these tactics is acknowledged by everyone and every party in this House. I want to recognise the work and support of many colleagues who have long been battling against the inhumanity of the tactics.”
“Madam Deputy Speaker, I have to say that that is the first time that hon. Gentleman has ever called this hon. Gentleman an honourable gentleman, so my congratulations to you. I want to pay tribute to hon. Members across the House. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) has fought as a constituency MP for the workers at Glasgow airport, where workers were facing new contracts that cut their take-home pay by up to 70%. He has long championed this cause, and I pay tribute to him. The right hon. Member for East Antrim (Sammy Wilson), the hon. Member for Edinburgh West (Christine Jardine) and the hon. Member for Bury South (Christian Wakeford) have all spoken out bravely against employers using this tactic and made sure that it is regarded as a moral issue rather than a party political one.”
“During that time employees are often working to rule or refusing to do overtime. Where the dispute leads to strike action, there can be enormous loss of production. It is estimated that British Gas Centrica lost between £30 million and £40 million in productivity during the dispute. That is revenue that ultimately is lost to the country and to the Exchequer.”
“ACAS reported that recent survey that we discussed, carried out by Britain Thinks, which polled 2,231 individuals in England and Wales and recorded that 9% of employees had experienced the threat of fire and rehire in the previous nine months. Workers are vulnerable to the practice in almost every sector. The survey recorded particular patterns of discrimination against young workers between the ages of 18 and 24, workers who self-identified as being from a working-class background, and black and minority ethnic workers, who face the threat of fire and rehire at nearly twice the rate of white workers. However, it would be wrong to think that fire and rehire is simply a social problem or an issue of morality; it is also an economic problem. Disputes around fire and rehire drag on, sometimes for months.”
“Absolutely. I hope that the House will show its true colours and come to an accommodation, so that we not only agree that it is the right thing to be done but ensure that it is done. I must also pay tribute to my hon. Friend the Member for Middlesbrough (Andy McDonald), who is a dear friend. It might well be said that he has championed the issue of employment rights man and boy, except neither he nor anyone else can remember that far back. He will no doubt make his own excellent contribution, backed up by his technical expertise as an employment solicitor. Finally on this part of my speech, I thank Messrs Price and Torbitt in my team, who have been so helpful in supporting this campaign throughout the past month.”
“The hon. Gentleman is absolutely right to say we need to ensure that businesses can cope with the changes that they experience and can, from time to time, restructure appropriately. I think the point my hon. Friend the Member for Brighton, Kemptown (Lloyd Russell-Moyle) was making is that, when they seek to do that, it should be done through a proper process of consultation and negotiation, and not holding the sword of Damocles over the heads of their workers.”
“My hon. Friend makes a very significant wider point about the productivity and the relative productivity of the UK. I think that is a matter of very deep concern to Members across the House.”
“The hon. Lady’s point was somewhat drowned out on the Labour Benches, but I think it was by people who were agreeing about the importance of training and skills.”
“My hon. Friend has, again, touched on a really important point. It is about what sort of society we want and whether we want a society where work is an insecure fact of life.”
“We all enjoyed the hon. Member’s contribution. All I would say to him is that, at this time of day, one should never drink on an empty head.”
“Again, I am grateful to my hon. Friend. I think we in this place often have a very poor understanding of just how insecure people in the workplace really are. Most of us here have the comfort and luxury of being Members of Parliament. The point that she makes about how important it is to have support in that environment from a trade union is absolutely essential.”
“All the good will that was once in the company is gone and productivity remains low. In the long run, the business suffers because the workforce has lost all motivation.”
“I will just make some progress, if I may. All too often, a new chief executive comes into a business and announces that they are going to drive up shareholder value. What they do is drive down workers’ wages through tactics such as fire and rehire and that money is then siphoned off to increase the shareholders’ dividends. Often, those employees are left as the in-work poor and they become dependent on universal credit, exactly as my hon. Friend the Member for Swansea West (Geraint Davies) said. That means that the rest of us in society are making up the shortfall in those employees’ wages. We as taxpayers are the ones forking out to increase that shareholder value. The chief executive has done what they promised. They go off to another company, but morale in the workplace has evaporated.”
“I am grateful to my hon. Friend. He makes a very important point that was reinforced when I met the British Chambers of Commerce. The lady I met said that before she came to meet me to discuss these issues, she had conducted a thumbnail survey of its chambers. She said that what came back from the chambers was, “It never ends well for the business.” So the economic argument is critical, and we need to understand that this is not only immoral, as the right hon. Member for Dundee East (Stewart Hosie) outlined, but a serious economic failing of this country.”
“Not only do I agree with my hon. Friend, but I agree with the statistics. The statistics are very clear: 70% of the companies that have engaged in these tactics over the last month were actually making profits. That is why I say that this is not just an ethical problem of bullying and unfair tactics, but an economic problem that even the most hard-nosed Treasury official should recognise. As the Leader of the House has said, “All companies operate best when their employees are working there with enthusiasm, and these types of tactics are very bad for morale in businesses” —[ Official Report , 25 March 2021; Vol. 691, c. 1103.] And, as he also famously said, “Fire and rehire is no way to do capitalism.””
“I am happy to respond to the hon. Lady’s question. We chose the figure of 50 employees, and the Bill refers to 15 or more employees being affected by these changes, because that marries up with the existing legislation on redundancy and other matters. Fifty is the figure that has been chosen by the Government in previous legislation. I have tried at all points to make the Bill technically proficient, so that it intersects with all the other legislation in this area. The hon. Lady asked whether this was happening in smaller companies. Sadly, it is, and I would dearly like to see it outlawed there also. We have made the Bill commensurate with all the other employment legislation, which is why the figure of 50 was chosen.”
“Managers at Jacobs Douwe Egberts, the coffee people in Banbury, made record profits during the pandemic, when coffee consumption increased by 40%. While the managers awarded themselves large bonuses, they demanded wage cuts of up to £11,000 from 291 staff. The truth is that guidelines are not going to change the practice of such managers. Only by putting good practice into statute will companies be prevented from bullying their workforce by using the threat of fire and rehire, and only if those tactics are outlawed will good companies not feel the competitive pressure to behave just as badly.”
“The Minister advised me that the Government are now asking ACAS to recommend how they might strengthen the guidelines to business. I am a believer in guidelines, and good businesses tend to follow them, particularly if they are clear and if other businesses are doing the same. The problem comes when unscrupulous businesses are not adhering to those guidelines and gain a competitive advantage from that non-adherence. There then often follows a race to the bottom in which the good company feels forced into bad practice. I do not believe that any manager goes into work thinking, “I am going to do something noble and fine this morning: I am going to tell my 300 employees that they will be fired unless they accept a pay cut of 20%, even though our company is making record profits.” That is why I believe guidelines are not a solution.”
“Member for Sutton and Cheam (Paul Scully), he made it clear to me that the Government were “not minded to legislate.” That was even after the ACAS report “Dismissal and re-engagement (fire-and-rehire): a fact-finding exercise” was published, which may appear surprising given that ACAS reported examples of what participants in its survey “regarded as employers using the crisis opportunistically as a ‘smokescreen’ to diminish workers’ terms and conditions; and the use of fire-and-rehire as a negotiation tactic to undermine or bypass genuine workplace dialogue on change.” ACAS made it clear in the report that, although the Government were happy for it to outline the findings from such a fact-gathering exercise, “Acas was not asked to present recommendations to government.” If not legislation, what?”
“I have set out that there is a problem of morality and economics. How can we fix it? Back in June, when I sat down with the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon.”
“May I just remind the hon. Lady that the comment about capitalism was not, in fact, mine but the Leader of the House’s? I understand her fundamental point, and from it I take that both she and I want to see wages in this country rise to an appropriate level so that every person and every family feels they can put a roof over their head and food on the table, and feels secure in their life—although she will have voted one way on Brexit, and I will have no doubt voted the other way, we would both welcome a move towards a society in which that is possible. The Bill is about levelling up and stopping the practice whereby, at the moment, many hundreds of thousands of workers in this country are seeing their wages levelled down, which is why it is so important that we get legislation.”
“Let me reassure the hon. Gentleman that we are not skipping down what Hamlet called the “primrose path of dalliance” to hell together. I have no intention in this Bill of banning, and there is nothing in this Bill that would ultimately ban, fire and rehire. There is an important reason for that and I will come on to it in my speech.”
“I am grateful to the hon. Gentleman for that. It is important that we clarify that on both sides of the House. There are other ways of addressing—”
“My Bill will not stop that restructuring, it will not stop managers being able to manage the business and it will not burden business with new and additional bureaucracy.”
“I repeat that my Bill does not ban fire and rehire. It may surprise colleagues to know that there was a common view among the employers’ organisations I spoke with—the CBI, the Institute of Directors and the chambers of commerce—which was held equally right across the trade union movement, that banning fire and rehire outright could have perverse consequences and should not be attempted. It is essential that where a company is facing a collapse the law does not prevent what may be the only way of preserving those jobs and continuing the enterprise. Anything else would be a perverse outcome. I used to run my own business in the City. I entirely accept that businesses need to change and to adapt. In a competitive business environment, they have to restructure from time to time.”
“Friend the Member for Barnsley Central (Dan Jarvis), Tracy Brabin, Andy Burnham, Dan Norris and Jamie Driscoll, have been particularly effective in using this form of community engagement and procurement power, and many other local authorities have followed suit. Mark Drakeford, in Wales, has shown just how effective this can be through his economic action plan, “Prosperity for All”, which has enabled the Welsh Government to develop a new and strengthened relationship with business and to drive inclusive growth and responsible business behaviours. I was delighted to talk to him recently about the success of that sort of engagement, but he was equally keen to say to me that it could never be a substitute for clear and effective legislation. So turning to the proposed legislation, it is important to be clear about what my Bill does not do.”
“Across the House, I think we can all agree that we want to grow our economy—there is no question about that. We also want to grow jobs, but let us make sure that when we do grow those jobs, they are good, secure and well-paid jobs. There are other ways of addressing this problem, one of which has been pioneered by a group of metro Mayors: using the procurement power of local authorities by scoring companies that seek contracts from local government on social as well as economic grounds. Councils are able to press local employers to engage with their good employment charters and to eschew bad practice. My good friends—some are former colleagues—my hon.”
“I am about to address those points. If, later on, the hon. Gentleman feels that I have not done so, he should intervene on me again, because they are important points and I do not want to leave them unaddressed.”
“My hon. Friend speaks with such a wealth of experience on these matters and he is, of course, absolutely right. Good businesses need to be able to respond quickly to the pandemic, as the hon. Member for North East Bedfordshire (Richard Fuller) suggested, but they also need to maintain the good will of their workforce, to go with workers on that journey and not only to take the immediate measures necessary but restore the benefits in the long term.”
“They could also apply for a court injunction to compel the taking of those steps and for any downgrading of terms and conditions, or dismissal, to be rendered void. The independence of the CAC cuts both ways, because if an employer had followed good practice, it would be entitled to pursue the dismissal and re-engagement of employees even if the terms proposed were deemed unacceptable to the workers’ representatives.”
“Clause 1 would insert into the Trade Union and Labour Relations (Consolidation) Act 1992 a duty to consult employees in good time and to disclose to workforce representatives reasonable information about the risk to continued operation. That would make it easier for the employee representatives and the management mutually to agree, in good time, a variation of contract that represents the least disagreeable way forward. Such disclosures would be covered by confidentiality. If the employer failed to provide the necessary information or refused to engage in timely and genuine negotiations, the workers’ representatives would be able to apply to the Central Arbitration Committee for a declaration that identified the steps necessary to put right any such failures.”
“I am just about to move on to the technical part of the Bill. Madam Deputy Speaker has caught my eye to suggest that I have been over-generous in giving way, so I shall defer to her rather than to the hon. Gentleman. The Bill will enshrine good practice in law and penalise bad practice. It will put on a statutory footing the procedure that decent employers already follow. It will encourage both employers and workers to reach the best outcome, and will discourage bad employers from threatening to fire and rehire when no legitimate threat to the business demands it. If the restructuring of a company is required because it is at risk of becoming insolvent unless employees’ terms and conditions are substantially changed, my Bill will assist the speedy settling upon of an acceptable outcome.”
“Workers are pressured into signing the new contract. Employers say, “How are you going to pay your mortgage if you don’t have a job? How are you going to put food on the table? How many children do you have? Two, three, is it? You really should sign because, you know, we have got 40 people lined up out here who would love to come and take your job. You are one of the lucky ones, you’ve got a job.” This is how the threat of fire and rehire is used in practice. No wonder the Minister himself has called it bully-boy tactics in the workplace. To fight back against this early issue of a notice of termination is actually very difficult. It takes a trade union between four and six weeks to comply with the law on notification, balloting of members, notification again and then strike action.”
“I will not. The CAC could also refer the matter to ACAS if it thought that conciliation might assist in settling the dispute. One of the more disturbing aspects of my visits to disputes around the country is the stories I have heard about the way managers have increasingly opted to issue notices to terminate the contract very early on in the process. The issue of a section 188 notice used to be a last resort. Recently, it has become a first-strike nuclear option. ACAS has also remarked on that. Employers will set out their package of changes to terms and conditions alongside a section 188 and effectively fold their arms and say, “That’s all the consultation you’re going to get.” They then begin to demand that workers come in for interview one by one, often without any union representative accompanying them.”
“I doubt it will be substantially different from clause 1 of my Bill, although I doubt that the worker protections will be as comprehensive as mine in the subsequent clauses. What does that say about our politics? The House knows that I have run a cross-party campaign to support this Bill. I have welcomed MPs from all parties, and I value their contributions to this campaign. That the Government believe they must brand any solution with their own party political colours is something I find sad. We began this week by remembering our colleague and friend and by praising the cross-party manner in which he had conducted his politics for so many years in this place. How good it would have been to conclude the week in the same co-operative cross-party spirit.”
“They would rather pretend, under the cloak of a closure motion, that they want to go on talking about it so that it simply runs out of time. Today, the Government are set to vote against not the Bill, but the closure motion—the effect is the same. The Bill will die. Nobody is fooled. British workers will know that this Government would rather play politics than look after British families. There is another aspect to the politics of this Bill. The Government have told their Back Benchers, who are rightly concerned that they will be blamed by their constituents for voting this Bill down, that they have tasked the hon. Member for Newbury (Laura Farris) with bringing forward a Bill of their own. She has considerable experience as an employment barrister, and I hope that she does bring that forward.”
“In politics, it is rare to find something that absolutely everyone agrees on, yet all the way from Len McCluskey to the Prime Minister himself, everyone agrees that fire and rehire is wrong, so why are the Government determined to block this Bill? Normal practice would be to allow the Bill to pass Second Reading and go into Committee, where it could be amended and any perceived deficiencies ironed out. If that proved impossible, the Government could kill it in Committee or on Third Reading. Why are the Government intent on talking the Bill out this morning? The tactic of filibustering to talk the Bill out is cowardly. It seems that the Government do not wish to be seen actually to vote against the Bill.”
“I have tried to set out for the House five things—that the Bill seeks to address a genuine social and economic problem; that a legislative vehicle is necessary and desirable, even though other mechanisms can partially address the problem; that the Bill is a reasonable and sensible measure that substantiates good practice and discourages bad; that the Bill is fair and proportionate in the remedies that it proposes; and that the Bill is technically proficient in connecting up with all the other relevant legislation. There is one final question, which concerns the politics surrounding this Bill. Given all that Ministers have said denigrating the practice of fire and rehire, it is remarkable that the Government have imposed a three-line Whip against it today. Why?”
“But this does not present a problem, because section 117(3)(b) and (4)(a) of the 1996 Act allows the defence of impracticability to an employer who refuses to effect a reinstatement or re-engagement order, and precludes the additional penal award of compensation, which is the usual consequence of non-compliance. Thus, only normal unfair dismissal compensation would be payable to a refuser. Such compensation is, of course, all that the company would be liable to pay, even where an employee would otherwise have qualified for many years of redundancy payment. As such, I believe that it represents a reasonable and proportionate solution for those who genuinely feel that they cannot afford to accept the diminution of pay, terms and conditions that are proposed.”
“The job is still there; the employee has simply refused to do it on the revised terms so there is no redundancy. For this reason, the Bill ensures that, where an individual worker or a small section of the work force refuses to accept the variations that have been agreed with other representatives in the workplace, and that person is dismissed for refusing to accept the variation, they will be entitled to claim unfair dismissal. This allows the rest of the business to move forward in harmony, and does not result in closure and loss of all the jobs. The primary remedy for unfair dismissal is, of course, reinstatement or re-engagement, and the Bill does not allow employers a defence of impracticability.”
“No, I am concluding this section, then I will happily give way to the hon. Gentleman. These points are important. For this reason, the Bill would amend section 19 of the Trade Union and Labour Relations (Consolidation) Act 1992 to relieve a union of those duties where there is a fire and rehire situation. Clause 2 introduces amendments to the Employment Rights Act 1996 to give enhanced protection to workers who are fired and rehired. Another insidious practice I have come across is where companies have come to realise that fire and rehire can be an effective way of avoiding redundancy payments. The law currently allows an employee to be dismissed for refusing to accept a variation in contract. Employers now consider that, by making the new terms so unacceptable, they can effectively force the worker to refuse the new contract.”
“I am grateful to the hon. Lady for engaging so closely with the Bill. I think she knows she is over-egging it, because any tribunal would look at the situation in the round. The Bill is drafted as it is because it chimes with the legislation on redundancy. Again, to be technically proficient, the Bill has to merge with the other Acts.”
“I agree that it is really important to take the heat out of the situation at the very beginning. The hon. Lady is absolutely right—I mentioned it myself—about the importance of not having section 188 on the table immediately. That is why, starting at line 20, the Bill says: “The employer shall consult with a view to reaching an agreement to avoid decisions being taken to terminate contracts of employment, or to introduce changes in work organisation or in contractual relations.” The precise point that the hon. Lady has made is there on the face of the Bill.”
“There is much in what the hon. Gentleman has said that I agree with. I just point out that the Bill does not actually ask for the disclosure of “all information”. It asks for the disclosure of “all information…without which the appropriate representatives would be to a material extent impeded in carrying on consultation with the employer, and… which it would be in accordance with good industrial relations practice that the employer should disclose”. That is not a catch-all. It is specifically about the information necessary to conduct proper consultations about the future of the business. He is being very fair in the remarks that he has made, but he must not misrepresent the Bill in that way.”