News from the Employment Tribunal National User Group

I spent most of this afternoon at a meeting of the Employment Tribunal System National User Group. ETSNUG is chaired by the President of Employment Tribunals (England and Wales) and includes reports from both HMCTS and ACAS, so it’s a good opportunity to find out how the employment tribunal system looks from the inside.

The following is based on my note of the meeting. While obviously I think it’s an accurate account, it shouldn’t be taken as an official statement from the President, HMCTS or ACAS.

It’s also quite long — I’ve tried to put the most interesting stuff at the beginning.

Claims accepted

After the large drop in August and September, the number of cases accepted by the tribunal is rising slowly.

Both the President and HMCTS expect a slow rise until the numbers stabilise at their post-fee level. But it’s too early to say what that level will be — particularly with early conciliation coming in from 6th April 2014. They don’t expect to be able to draw clear conclusions about the post-fees level of tribunal work for another 12 months.

ACAS reports that the number of calls to their helpline remains steady. This suggests that the underlying level of workplace conflict remains much the same.

Fees / Remissions

About one third of remission applications are being granted on the first decision. Most remissions that are granted are granted in full — there are very few partial remissions.

Initial decisions are being made fairly rapidly. The oldest remission applications without a first decision is about two weeks old. Contrary to speculation (some of it mine) there is no large pile of unprocessed remission applications building up in Leicester.

However, there is a time-line impact, because it takes time to deal with fees / remission before accepting the claim and HMCTS statistics have always worked with accepted claims. They are considering whether to start publishing information on claims submitted as well.

HMCTS is actively reviewing the remission process, both within and beyond employment tribunals. They’re looking at the information provided to applicants and their own processes, with the aim of improving both the remission applications and the way they deal with them.

Apparently quite a lot of remission applications fail because, on their face, the applicant can’t pass the capital test (i.e. they have declared more than £3k disposable capital). There’s some suspicion that some unions require members to make an application for remission before they will fund the fee. If this is happening HMCTS would like them to change policy, because it’s causing unnecessary work.

Outstanding caseload

More than half of the outstanding caseload of about 600,000 claims isn’t ‘real’. In other words, it’s made up of airline working-time claims and insolvency claims, that are lodged with the tribunal, but which almost certainly won’t need judicial resolution.

Most of the claims heard by a tribunal are multi-day discrimination claims. A high proportion of unfair dismissal and wages claims settle.

Equal pay: almost all claims are against the state in one form or another. There are now very few central government claims and the number of claims against local government is dropping.

In general, the timeliness indicators in single cases have improved over the last four years. The average time to complete a case is dropping. Given the reduction in tribunal resources, HMCTS feels this is significant success.

Online portal

HMCTS is aware of difficulties with the online portal, both in terms of bugs and aspects of the process users would like to see improved. They’re working on both areas of this.

About 75% of claims now come through the online portal — compared with about 40% submitted online under the old system.

New Rules

From the tribunal’s perspective the introduction has gone smoothly and quietly.

Presidential guidance covering applications for postponements (and default judgments in Scotland) will be published in the next few days. These are the areas covered by the example guidance in the rules consultation. The published guidance will be very similar, but with a certain amount of updating and revision.

Next year, there will be more wide-ranging Presidential guidance, dealing particularly with case management. The ultimate aim is for there to be a single piece of umbrella guidance, online, with links to more specific guidance.

A Practice Direction under rule 88, providing for service on the Secretary of State, the Law Officers, and the Counsel General to the Welsh Assembly Government, in cases where they are not parties, will be released in the next couple of days. This will not involve any change in the current practice.

Early conciliation

We can expect regulations on early conciliation towards the end of January. The preparatory work within ACAS of producing guidance and training staff is going forward ahead of the regulations being finalised.

ACAS has added 40 new conciliators to its existing team of 240 in preparation. The new conciliators are appointed on a temporary basis (some are temporary promotions from within ACAS, some are on temporary contracts). Staffing levels will be reassessed when it’s clearer how much work there will be in both early conciliation and tribunal claim conciliation.

ACAS expects most applications for conciliation to be online. They hope to get 80% of applications that way. Their aim will be to call applicants the next working day.

The general approach will be to talk to both employees and employers and encourage them to consider engaging in discussion before a claim is lodged. ACAS will try to avoid pushing people into entrenched positions or linking the conciliation process with any tribunal claim. Partly for this reason, conciliation won’t involve writing down details of any potential claim.

Non-payment of awards

Ministers are engaged and concerned with this issue. They wanted up-to-date research to have an evidence base for further action. This has now been published.

It’s clear that non-payment is a multifaceted problem with no single solution. BIS are now considering their approach. They want to have better information and guidance for claimants — but they are also considering more wide-scale change to the way awards are enforced.

There is funding for a national pilot, in which claimants will be contacted about 42 days after the judgment. Half will only be asked if the award has been paid. The other half will be told about enforcement. BIS is hoping to establish if this sort of signposting makes a difference to enforcement rates. This pilot will go forward at the same time as other efforts on non-payment.

BIS is also concerned about phoenix companies. There has been some successful examples of them working with the investigative branch of the insolvency service. They hope to do more of this.

Financial penalties against respondents

These will come in from 6th April 2014. They are likely to be enforced by debt collection agencies, as HMRC debts are.

There might be consideration of the debt collectors enforcing unpaid awards to claimants at the same time. But discussions are at a very early stage on this.

Judicial mediation

The number of cases going to judicial mediation is slowly dropping. There appears to have been a change of policy among some parts of the public sector away from accepting mediation. Also the overall number of claims is down. Fees haven’t yet had an impact, because those cases aren’t yet far enough through the system.

At the moment no new judicial mediators are being trained. This will be looked at again when the full impact of recent changes can be assessed.

Regional reorganisation

This is mostly complete. The ultimate aim is that each of the 12 regions will have a single administration centre, which will do the back-office work for the other hearing venues in the region. For example, in London South administration is now concentrated in Croydon; Ashford is now purely a hearing venue.

The following regions are still being worked on:

  • South West: where decisions are still being made about what will happen.
  • East Midlands: Nottingham will be the regional centre. Administration will be from the Magistrates Court buildings. Hearings will be in the old coroners court, which will be refurbished for tribunal use. Although Leicester is the central administrative hub, it won’t deal with the any of the regional admin.
  • London North / West: decisions still being made about what to do.

Non-legal members

Now sitting in far fewer cases, generally only in discrimination claims. It’s very unusual for an unfair dismissal hearing to have non-legal members.

HMCTS estimate that there has been a hearing time saving of one third.

Tribunal / Court estate

This remains an important area of concern for HMCTS. The estate as a whole is at about 80% capacity. This means that, on any given day, one in five courts are empty. Some are permanently empty and some are underused.

This is a problem, because it means that the government is spending a lot of money on buildings that it isn’t using. Estate is likely to be a key issue in discussions of HMCTS funding and structure in the future.

There is a general principle that HMCTS will not hear civil cases in criminal courts unless it’s necessary. Where courts are refurbished it is common to curtain off criminal features, such as docks and the jury area. These aren’t permanently removed so that the court can repurposed again easily if necessary.


41 new fee-paid judges were appointed in the last round. They have recently completed their training and begun sitting.

There are no plans to recruit judges or non-legal members in the foreseeable future. Everyone is waiting to see what the ultimate impact of the changes is on work-load before making any decisions.

A tad more on ET claims since July

A few weeks ago, I emailed each of the regional ET offices, asking for the number of ET claims they had received in each month in 2013, including October.  At least some of my emails were passed to HMCTS, which unilaterally decided to treat them as a Freedom of Information request. And I have just received a partial FoI response from HMCTS: the data provided is for just seven ET regional offices, and does not include any figures for October. According to the covering letter from HMCTS, the figures for October are “not currently available”. To which I can only say: and I’m a banana.

Whatever, the data probably adds little if anything to the fantabulous, two-part analysis by Alex Lock on this blog of the data already published by the Ministry of Justice/HMCTS.  But I’m going to share it with you anyway, as I think there are a couple of interesting points to note.

*Claim & Multiple Claim Case* Klaxon!!! Yes, before we start, it is important to note that the data, set out in the following table, relates to ‘claims’ received by each ET regional office.  That is, the figures for each month are – as an estate agent would say – comprised of the number of single claims by individual claimants, plus the number of individual claimants included in multiple claim cases.  Which, as Alex Lock noted, is not the most meaningful measure of the ET system’s workload: the better (but still not ideal) measure is the number of single claims by individual claimants, plus the number of multiple claim cases.  This is important, because at the level of ET regions the number of ‘claims’ can easily be distorted by just one or two unusually large multiple claim cases (or the lack of same).  Got that?  OK, now we can move on to the table.

ET Office











Actual – aver


























































































To the table of data provided to me by HMCTS, I have added two columns: one giving the average monthly number of claims received in the six-month period January to June; and a final column showing the difference between the actual total number of claims received in the three-month period July to September, and the total number of claims that would have been received in that period had each month been an average month (based on the previous six months, January to June).  Whilst this fails to take account of seasonal variations, it does gives us a somewhat crude measure of the impact of fees in these seven regions, as it does at least even out any bulge of claims submitted earlier than they might have been in order to beat the introduction of fees on 29 July.

From this final column, we can see an apparent fall in the number of claims post-fees in six of the seven regions – the exception being Nottingham, which had a relatively large pre-fees bulge in July. Klaxon!!! Yes, as noted above, some or all of the Nottingham bulge could be due to one or more unusually large multiple claim cases. Overall, the seven regional offices received 1,822 fewer claims in the three-month period July to September than they would have done, had each of those months been an average month.

Perhaps more significantly, in September the number of claims was well below average, in all seven regions.  Indeed, the September total for the seven regions (698) is just 25 per cent of the average monthly total (2748).

We can also see that in three regions – Leeds, Reading and Southampton – there was in fact no evident pre-fees bulge.  Klaxon!!! OK, by now you know what the klaxon means.

If you are still awake at this point, you might have noticed that the August and September figures for Nottingham and Southampton are not just similar, but identical.  This seemed so unlikely that I asked HMCTS to double-check, and they have today assured me that the figures are correct.  Coincidence? It would seem so.

Different klaxon!!! Yes, enough with the klaxons already. As Alex Lock noted, the September (and perhaps even the August) figures might well need to be adjusted upwards, as they do not include any claims submitted but not counted as received by HMCTS because a decision on fee remission is still pending.

Which means I’ve probably just wasted two minutes of your time, and you’ll just have to come back and read a further devastating analysis by Alex once the October and November figures have been made public.

TUPE and Variations of Contract – today’s brain-teaser

To the considerable frustration of many a transferee employer, the scope for varying the contractual terms and conditions of transferring employees is notoriously limited.

TUPE 2006Reg 4 renders void any amendment the sole or principal reason for which is either:

(1)   the transfer itself; or

(2)   a reason connected with the transfer.

The latter limb is qualified, however. If the transfer-connected reason is an economic, technical or organisational (“ETO”) reason entailing changes in the workforce, the amendment will not be void.

Amongst the changes introduced by the new Draft TUPE Regulations is a recasting of Reg 4. Reg 4(4) will now render amendments void in a narrower range of circumstances:

“… any purported variation of a contract of employment that is, or will be, transferred by paragraph (1), is void if the reason for the variation is the transfer.”

There are two immediately apparent changes. First, the Regulation no longer makes reference to the “sole or principal reason”. Arguably it now only applies where the transfer itself is the sole reason for the variation.

Second, there is no reference to reasons “connected with” the transfer. The implication appears to be that variations which are for reasons which are merely transfer-connected should be safe.  There is, however, a big but and here at Hard Labour we like big buts and we cannot lie. New Reg 4(5)(a) will provide:

“Paragraph (4) does not prevent a variation to the contract of employment –

(a)   if the reason for the variation is an economic, technical or organisational reason entailing changes in the workforce …”

What is the purpose of this provision? An ETO reason is a transfer-connected reason. If Reg 4(4) no longer applies to transfer-connected reasons – what is the point of Reg 4(5)(a)? Should it be taken to imply that a non-ETO transfer-connected reason will still fall within the scope of Reg 4(4)? Answers in the comments below, please.

Party Politics – A Re-Appraisal Of Corporate Entertainment For The Festive Season

Once upon a time, in a land far far away (the 1980s), Christmas parties were an excuse for a good old knees-up, staggering amounts of inebriation, wildly inappropriate conversations, and for drunken staff to get anything off their chest to the MD safe in the knowledge that he (and in those days it almost always was a ‘he’) was too pie-eyed either to recognise them at all or as a minimum, to remember the incident the following day. If anyone even made it into work the next day, that is.

Of course, some things cannot (and, perhaps, should not) last and, like an outrider for the Four Horsemen of the Apocalypse spotting a town ripe for plunder, a keen employment lawyer one day identified Christmas parties as a ‘marketing opportunity’. Nowadays, if you want to know when Christmas is approaching, rather than simply waiting until your city looks as if it has been invaded by an army of incoherent yet smartly dressed zombies, you just have to wait for the first ‘Christmas party’ blog, article or newsletter warning you of the obvious pitfalls of allowing your staff a moment’s respite from a year of trying to do more with less, good economic news which has somehow not reached their employer and the nagging fear that their teenage children will now never, under any circumstances, leave home.

However, what was once original is now tired – indeed crowds of lurching suited zombies thronging the streets trying to find a nightclub that will let them in have instead been replaced by their equivalent in prose, with lawyers and HR consultants simply re-writing and re-working the same undead warnings. These may have been ‘original’ and ‘new’ and possibly even “trendy” during the 80’s and early 90’s but now they simply remind those in HR of what they already know – that no matter how you ‘set the tone’ or remind people of their responsibilities, if someone is going to be an idiot at a Christmas party, you can’t stop them. Now, as then, combining someone else’s alcohol, institutional cooking, and the eternal but nonetheless baseless belief that you will become more attractive as the evening goes on, is a recipe for trouble. But you knew that, right?

Courtesy of website we can however add some new blood to the usual pre-party cautions: don’t talk about work, it advises, ask for a raise or steal the cutlery. No twerking, adultery or drunken use of the photocopier either. No wonder, perhaps, that a recent survey by life-and-pensions group Metlife reports that over 70% of UK workers would sooner have the money their employer spends per head on the Christmas bash than the party itself. And that is not just the old and jaded among us – the party spirit has also left some 65% of 18-24s preferring the cash, though that may be more a comment on their recent pay progression than a general cooling on the festive frolic front. After all, how could a little post-tax cash really compare with the boost to the spirits occasioned by watching your senior management forfeit their dignity on the dancefloor, a spectacle which discretion and good timing can now ensure is preserved forever on Youtube? What pleasure can mere money give you relative to the knowledge that at the end of the evening you will not have to wear black tie again for another year? You might discover that some of your management/employees are quite decent people, even if they have done their best to hide it over the preceding year. And in the end, do remember the wise words of US writer PJ O’Rourke: “After all, what is your hosts’ purpose in having a party? Surely not for you to enjoy yourself; if that were their sole purpose, they’d have simply sent champagne over to your place by taxi”.

So no holier-than-thou fliers this year. HR has a right to enjoy the Christmas party too, and if you do see the first stirrings of trouble in a dark corner of your chosen venue, you will know immediately the sensible and professional thing to do – run.

Update on ‘Cliffs and Claims’







In my earlier post I analysed the figures that the Government published on 18 October 2013, a few days in advance of the judicial review hearing challenging the introduction of fees for bringing employment tribunal proceedings. My analysis showed significant drop in the number of claims being submitted. The drop was far greater than the Ministry of Justice’s analysis appeared to suggest. The MoJ’s line was that “Employment Tribunal receipts were around 40,000 for July – September in line with historical quarterly trends [my emphasis].

My analysis was that once you get past the distorting effect of the 29 July 2013, when fees were imposed, claims had dropped by over 75%. (By ‘distorting effect’ I mean where there is a specific date for fees to be introduced, it will have the effect of many claims being submitted early, to beat the fees, with a corresponding decrease in claims immediately after that date).

One big caveat that was attached to the figures by the MoJ was that they were preliminary figures and subject to revision at a later date. That was a fair point, especially given that a claim is not “accepted” until the fee is paid, or remission granted. Inevitably with a new system – and a government one that involves IT – there will be delays and errors. Claims submitted with applications for remission of fees may have been caught in the system, unable to be included in an earlier count.

The MoJ has published its updated figures today. Very little has changed for the current year, but –  surprisingly – quite a lot has for last year.

In reviewing the figures for the current year, we are most concerned with quarter 2, being July to September 2013. Unhelpfully the information published by the MoJ does not follow the same format as that published in October. No information is given on the number of single claims submitted, so I am not able to revise my analysis on those (a drop of from over 4,000 claims per month on average, to  just 1,003 this September).

We do have figures for multiple claims. The provisional figures showed 1,034 multiple claims accepted in the quarter; the revised figures show 1,061, a modest revision. Unfortunately, a month-by-month breakdown is not given so a similar comparison as in my last post cannot be done.

One can also look at “receipts” for the quarter. In my view this is not as good a measure as single or even multiple claims, but we can at least see to what extent there have been revisions from the provisional figures. The figures in October showed receipts of 38,963. Today’s revised figures show receipts of 39,514. A modest increase of about 1.4%.

Therefore, now we have the revised figures, we can see that very little has changed. The number of claims remains significantly down following the introduction of fees.

What is curious is what has happened to the figures for 2012/13. These show a significant downwards revision. In July and October 2013 figures were published for 2012/13. These showed the following:











Annual Total

Total Claims Accepted






The figures published today show a significant difference:







Annual Total

Total Claims Accepted






No note or explanation is provided in the commentary that accompanies the figures. It would be unusual for such revisions to be of this size and made so late. Needless to say, enquiries are being made.

If one wanted to show a consistent downward pattern in employment tribunal claims since, say, May 2010, then it would certainly be helpful to revise 2012/13 down by at least this amount. I’m not being cynical and I’m sure there’s a perfectly reasonable explanation…………..




Constructive Knowledge and Rubber Stamps

The court of appeal yesterday handed down judgment in Gallop v Newport City Council regarding the question of an employer’s constructive knowledge of disability. The Claimant was supported by the EHRC who were understandably pleased with the outcome. Credit should also go to the Bar Pro Bono Unit who supported in the EAT and in getting permission to appeal.

Mr Gallop was a technical officer  working for the local council. He had exhibited some signs of depression such as, stress, lack of sleep and appetite, tearfulness and difficulty in concentrating. Over the course of about 3 years, these symptoms continued and absences due to them occurred, he was referred to Occupational Health. The ET and EAT had decided that when the council’s occupational health providers had stated that Mr Gallop was not disabled in the course of three reports, the employer was entitled to rely on that to conclusively demonstrate that it did not have knowledge of the employee’s disability when it later turned out that he actually met the definition. The problem with the occupational health reports were that as they were described by Rimer LJ:

Their opinions amounted to no more than assertions of their view that the DDA did not apply to Mr Gallop, or that he was not ‘covered’ by it or words to that effect. No supporting reasoning was provided. As the opinions were those of doctors, not lawyers, one might expect them to have been focussed on whether, from the medical perspective, the three elements of section 1 [i.e. a mental or physical impairment which had a substantial adverse effect on his ability to carry out normal day-to-day activities] were or were not satisfied. Since, however, OH made no reference to such elements, neither Newport nor the ET could have had any idea whether OH considered (i) that Mr Gallop had no relevant physical or mental impairment at all; or (ii) that he did, but its adverse effect on his ability to carry out normal day-to-day duties was neither substantial nor long-term, or (iii) that he did, but it had no effect on his ability to carry out such duties. OH’s opinion was, with respect, worthless. For reasons indicated, Newport had to form its own judgment on whether Mr Gallop was or was not a disabled person; and OH’s views on that topic were of no assistance to them.

Had the EAT been right, the problems that would have been caused by the judgment fell into sharp relief in this case. An employer, deliberately or innocently could have provided inadequate information to a doctor to assess disability in the sense in the Equality Act (or DDA in this case) and then relied upon an inaccurate report to negative its knowledge. Both sides (and the court) in Gallop agreed that for constructive knowledge, it was knowledge of the facts which led to a person being disabled, not whether as a matter of law those facts amounted to a disability which was relevant. That being the case it was difficult to see how a bald statement that a person is not disabled got past facts which the employer already knew about from which they could reasonably known a person was disabled.

In giving permission to appeal, Elias LJ said

…it might be thought surprising if an employer could say we have received advice that an employee is not disabled and rely on that.   I am very curious to see what the outcome is!

It might not have come as much of a surprise therefore that Rimer LJ giving the only reasoned judgment concluded that:

…the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser’s opinion that he is not.

Overdue: a plan to tackle pregnancy & maternity discrimination

In 2005, three years before the global financial crisis of late 2008 and subsequent economic recession, a landmark study by the Equal Opportunities Commission found that half of all pregnant women suffered a related disadvantage at work, and that each year 30,000 were forced out of their job.  Eight years on, all the available evidence suggests that such pregnancy and maternity discrimination is now more common than ever before, and that as many as 60,000 women are pushed out of work each year.

Faced with mounting evidence of this proliferation of pregnancy and maternity discrimination, key government ministers have, until very recently, simply denied that there is a problem.  But in November, announcing £1 million of funding to enable the Equalities & Human Rights Commission (EHRC) to undertake a new study of the issue, ministers finally accepted that such unlawful discrimination “remains prevalent and more needs to be done to tackle it”.

Unfortunately, since 2010 the Coalition Government has made it even harder than it was in 2005 for women to tackle such discrimination.  Access to already overstretched sources of free employment advice, such as law centres and CABx, has been shrunk by the abolition of almost all civil legal aid – since April, three law centres have closed their doors for good.  The ‘questionnaire procedure’ in employment tribunal discrimination claims – which facilitates the revealing of crucial information held by the employer but otherwise not available to the claimant – is set to be abolished in April 2014.  And, perhaps most damagingly of all, since July 2013 those wishing to pursue a tribunal claim for pregnancy, maternity or other discrimination must pay up to £1,200 in upfront tribunal fees.

Bringing a tribunal claim is a daunting challenge at the best of times, and especially so for pregnant women and new mothers: the odds are stacked against them at a time when they need to protect their own and their baby’s health, and their income.  The great majority do not have access to the support and advice of a trade union, and simply cannot afford to pay for legal advice.  The introduction of tribunal fees of up to £1,200 only serves to further deter women with well-founded claims from taking legal action.

With pregnant women and new mothers facing the biggest living standards crisis in a generation, and the Government asserting that “we cannot deal with the economic challenges we face without properly using the talents of women in the workplace”, a new report by Maternity Action – Overdue: a plan of action to tackle pregnancy & maternity discrimination now – suggests it is time for ministers to translate their grand words into action.  The scale of the problem – and the impact both on individual women and their families, and on gender equality more widely – demands a firm response from government to ensure job security for all women during their pregnancy and maternity leave.

The announcement of £1 million additional funding to enable the EHRC to undertake a new study of the incidence of pregnancy and maternity discrimination is very welcome, as is the belated recognition by ministers of the scale and systemic nature of the problem.  But the EHRC study is unlikely to report for some time, quite possibly not until late 2014, leaving little if any time for meaningful government action before the general election in May 2015.  In any case, the Government could very easily act now to better protect the rights of pregnant women and mothers at work.

Perhaps most importantly, Maternity Action says the Government should scrap – or at least reduce to a nominal level – the upfront fees for discrimination and other employment tribunal claims introduced in July 2013.  There is now a broad consensus – including both the TUC and the CBI – that the Ministry of Justice has got it badly wrong on fees, and that, at the very least, the fees regime should be “redesigned to incentivise early resolution of disputes rather than maximise revenue” for the Ministry.  In the words of the CBI, claimant “fees should never be a barrier to justice”.

Secondly, the Government should abandon its planned abolition of the ‘questionnaire procedure’ in discrimination claims.  The proposed abolition will benefit no one, and will save no public money.

Thirdly, the Government should establish a process for publicly ‘naming and shaming’ employers found by a tribunal to have broken the law on pregnancy, maternity or other discrimination.

Fourthly, the Government should take speedy and robust action to improve compliance with employment tribunal awards, to ensure that women awarded financial compensation for pregnancy or maternity discrimination by a tribunal actually receive the money due to them.

Fifthly, the Government should match its funding of the new EHRC investigation into the extent of pregnancy and maternity discrimination with funding for an information campaign aimed improving the awareness of both workers and employers of the law on such discrimination, and an injection of funding into the specialist information and advice services that pregnant women and new mothers need to help them protect their rights at work.

And, last but not least, the Government should send out a strong message to dinosaur employers that economic recession and ‘hard times’ are no excuse to flout the law.