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.

Recruitment

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

Jan

Feb

Mar

Apr

May

Jun

Average

Jul

Aug

Sep

Actual – aver
Nottingham

721

433

332

572

323

329

452

1,400

218

73

335

Leeds

1,461

1,307

808

1,085

686

567

986

789

684

325

-1160

Huntingdon

193

171

173

200

230

168

189

296

109

53

-109

Reading

431

263

540

276

265

224

333

395

102

61

-441

Watford

320

295

357

272

446

586

379

780

102

81

-174

Bristol

221

174

194

179

183

158

185

317

66

32

-140

Southampton

195

210

272

236

190

239

224

248

218

73

-133

Total

2748

 

 

698 

-1822

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 Hereisthecitynews.com 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’

EMPLOYMENT TRIBUNAL CLAIMS

POST-FEES

UPDATE

 

 

 

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:

 

2012/13

Apr-

Jun

Jul-

Sep

Oct-

Dec

Jan-

Mar

Annual Total

Total Claims Accepted

51,463

47,614

45,240

63,715

208,032

The figures published today show a significant difference:

 

2012/13

Apr-Jun

Jul-Sep

Oct-Dec

Jan-Mar

Annual Total

Total Claims Accepted

40,305

47,789

45,710

57,737

191,541

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…………..

@AlexLock

 

 

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.

Cliffs and claims: Employment Tribunal cases post-fees

EMPLOYMENT TRIBUNAL CLAIMS

POST-FEES

PART 1 

 

On 29 July 2013 the Government introduced fees for those wishing to bring claims in the employment tribunals seeking to enforce their rights. For a system set up to be quick, simple, informal and free, this was the single biggest – and arguably most controversial – change since the tribunals were created in 1964. The Government stated the reason for doing so was to make sure that the users of the system paid their fair share of the cost of it, rather than it all falling to the taxpayer. No mention was made of the fact that the users of the system were, almost without exception, taxpayers.

The suspicion was that a government which had, in some quarters, expressed hostility to employees having and exercising rights, was introducing fees in order to cut the number of claims. Those suspicions were not allayed when the size of the fees were confirmed. For simple ‘money’ claims there was to be a fee of £160 to issue and a further £230 should it proceed to a hearing. For more complex claims the issue fee would be £250 with a further £950 for the hearing.

Unsurprisingly the introduction of fees was challenged via a judicial review application brought by UNISON (current fee £60 plus £215 for a hearing. The Government has now proposed increasing this to £135 plus £680 for a hearing). The hearing for this challenge began on 22 October. Just days before, on 18 October, the Ministry of Justice published an “ad-hoc statistical notice” showing the number of claims received into the employment tribunal system in the period July to September 2013. The key messages in the executive summary were:

  • They normally have an average of 17,000 “receipts” per month
  • In June there were 25,000 “receipts” and in July 17,000
  • In August there were 7,000 “receipts” and in September 14,000
  • The top “key finding” was that, “Employment Tribunal receipts were around 40,000 for July – September in line with historical quarterly trends”

A cynic may suggest that what the Government was saying, in advance of the judicial review hearing, was that:

  • the introduction of fees hadn’t really had an effect on the number of claims being brought – “in line with historical quarterly trends” – showing a decrease of only 2,000 “receipts” over what they would normally expect.
  • That is only a 5% drop (which probably represented the unmeritorious claims usually put in by the idle, making use of a free-system funded by the taxpayer, just to annoy their employers (and probably hard-working families)).
  • Quite properly the Government was re-balancing the system so that users made a proper contribution.

How could anyone criticise this? Surely the facts speak for themselves, particularly in the statistics the Government had so helpfully released prior to the judicial review hearing. As is so often the case, the executive summary was not really a summary at all. It is the place where you put the messages you want to get across, safe in the knowledge that few people will venture beyond it. Particularly where there are graphs, tables and figures.

First off, it is important to be clear about our language. In the executive summary the MoJ spoke of “receipts”, rather than cases or claims. There are two types of figures that are recorded:

  • Single claims – where an individual brings a claim against the employer. This may be Fred bringing an unfair dismissal claim; Susan bringing an unfair dismissal and unpaid accrued holiday claim; or Jay bringing a discrimination and whistle-blowing claim
  • Multiple claim – where two or more individuals bring claims against a common employer. This may be a group of transferring employees alleging a failure to inform and consult following  a TUPE; or it may be a huge number of cabin crew bringing a claim against an airline alleging their holiday pay has not been calculated correctly (of which more later).

“Receipts” is an amalgamation of the two types of claims, i.e. adding up the number of single and multiple claims received, but counting each of the claims within the multiple claims individually. Therefore, if 1,000 single claims were received and 1,000 multiple claims each comprising 10 individuals were also received, “receipts” would total 1,000 + (1,000 x 10) = 11,000, rather than 1,000 = 1,000 = 2,000 receipts.

Does it make any difference if we look at single and multiple claims separately rather than together as receipts? The short answer is yes and arguably a more accurate picture is painted as to what is happening to claims following the introduction of fees. If we start off with single claims – where a worker or employee submits a claim against his or her employer – what would we normally see? If we go back to 2012 there is a fairly consistent pattern of 4,000+ cases bring received nationally each month (the average is 4,602, with a range from 4,021 to 4,981).

If we look at the period from January to June 2013, much the same pattern is evident: an average of 4,380 per month, with a range from 4,029 to 4,635.

Moving on to July 2013 – with fees looming on 29th – there is a spike in claims to 6,691, a rise of over 2,300 on the average, representing a more than 50% increase. This is to be expected, as the MoJ acknowledges, with claimants bringing forward submission of claims to avoid the fee.

This was bound to result in a decrease for August, which it did: down to 3,341, as some of the claims submitted in July would have been submitted in August but for the introduction of fees.

Turning to September, just 1,003 single claims were submitted, being only 23% of the average for 2013 (and under 22% of the average for 2012). In September 2012 4,021 were submitted,  more than four times as many.

Surely, however, September suffered from the same fate as August, with claims being submitted early to beat the fee? Probably not and certainly not to the same extent. The reason for that is that the tribunals have a short limitation period. For most claims the period of time in which the claim must be submitted is 3 months. Therefore people cannot hang around and experience suggests that claims submitted in September related to events from late-July onwards, so those claimants would not have had the ability to bring forward submission of their claims in the same way those submitting in July could have done. The events they were complaining about had probably not happened early enough to do so.

One caveat ought to be attached to this analysis. The MoJ only counts a claim as “received” once it has been accepted. For those claimants who applied for remission of the fees, which would delay acceptance of the claim, their cases may not be included in these figures. One smaller caveat – made by the MoJ – is that the figures it released were provisional and subject to change. Final figures will be released on 12 December. Even with those caveats, it is highly unlikely that anything like 3,000+ claims will be restored for September.

So how about multiple cases? For these the “ad-hoc statistical notice” tells us (on page 7) that, “When looking at the number of multiple claims cases, regardless of the number of individuals involved, there is a broadly flat trend from April 2012 to June 2013. There is an increase in multiple claims for July 2013, again possibly due to people wishing to submit cases before the introduction of fees. There is then a decline in cases in August and September 2013.” The question is, how much of a decline?

If we look at the figures for the from April 2012 to June 2013 (none, curiously, are published from January to March 2012) we see a range from 682 to 404 submitted each month, giving an average of 520. In July we see our familiar spike of 616, being about 18% up, with a dip in August to 304. In September we plumb the depths to just 114. That is – again – 22% of the what one would expect to see. If we look at September 2012, 437 multiple cases were received: nearly four times as many, as with the single cases.

We do need to be cautious with multiple cases, however, as they contain a number of individual claimants. This is significant for three reasons. Firstly, there is one fee payable for submitting a multiple case. This means that the impact on each individual is far less than in a single case.

Secondly, in multiple cases the individuals are more likely to be supported by a trade union. Think of cases where multiple individuals bring a claim: failure to collectively consult on redundancies; failure to inform and consult under TUPE; large equal pay claims and so on. In those cases it is the union that will pick up the tab, rather than the individual.

Thirdly, since 2007, there have been over 10,000 claims brought by cabin crew in the airline industry in relation to the calculation of their holiday pay. Those claims are re-submitted every three months. Looking at the figures for ‘multiple receipts’ (the numbers of individuals within multiple cases) in March 2013, for example, there were 20,588. In July – our ‘spike’ month – there were 10,462, in August 4,107 and in September 13,359.

These numbers can really distort the figures, if that is what one wanted to do. When the MoJ, on behalf of the Government, publishes figures immediately prior to a judicial review on the introduction of fee and states that, “Employment Tribunal receipts were around 40,000 for July – September in line with historical quarterly trends(my emphasis), one might conclude that is what was being done. Yes, if you add up all the single claims in July to September and all the individuals within all the multiple cases, you do get to a figure of 38,963. That is a poor measure, however, and does not disclose what is really going on with employment tribunal claims.

Employment Tribunals up and down the country report that the number of claims has dropped significantly. Analysis of the statistics show that, far from being in line with historical quarterly trends, the number of claims has dropped by over 75% once you are past the distortion of the 29 July deadline.

It is true that claims may recover as people get to grips with a new system. When the statutory dispute resolution procedures were introduced in 2004, the number of tribunal claims dropped by about 25%, as people grappled with “what is a grievance?”, or “is this a Step 1 letter?”. Claims recovered.

What is not a surprise, however, is that if you introduce a hefty fee for something that was previously free, people consume less of it. One can argue about whether making it harder to bring a claim was the intention of a Government that commissioned the Beecroft Report, or that stated employers were “too scared” to employ people for fear of being taken to a tribunal. One cannot argue that it was wasn’t foreseeable that fewer people would seek redress through the tribunal system to protect their rights.

@alexlock

 

 

Including Commission in Holiday Pay

The Advocate General’s opinion given in Lock v British Gas Trading Ltd & ors is that commission payments should be included in a worker’s holiday pay. If this is followed by the Court then frankly it is going to cause chaos.

The opinion relies heavily on the Court’s decision in Williams & (many, many) others  v British Airways to the effect that pay in respect of annual leave must correspond to the ‘normal remuneration’ received by the worker in so far as that remuneration is ‘intrinsically linked’ to the performance of the worker’s tasks and has a degree of permanence.

In Lock’s case, the employee received commission on sales made which was paid in arrears once a sale had been completed. This meant that Mr Lock did get paid commission when he was on holiday, but that pay was in respect of work he had done before his annual leave began. His complaint was that since he was not able to earn commission while he was on holiday then his future pay would be lower than if he had not been on leave.

The Advocate General accepted that commission was intrinsically linked to the work Mr Lock did and that although it varied from month to month it was an inherent part of his overall remuneration and had the necessary degree of permanence. A failure to take commission into account was capable of deterring Mr Lock from taking his annual leave – all the more so since it made up about 60% of his total remuneration. On that basis the AG concluded that commission did have to be included in calculating Mr Lock’s holiday pay, with the suggestion that he should receive the average amount of commission paid over a representative reference period.

Has Lock really lost anything?

It seems to me that the key flaw in this is that it assumes that if Mr Lock worked for 52 weeks in the year rather than 48 he would make an extra four weeks’ worth of sales. But simply as a matter of common sense that will not be true. There will be quiet periods when the clients themselves are on holiday and so unlikely to close a deal and Mr Lock will also organise his time around the fact that he will be taking holiday at various points over the year. There may well be cases where commission is earned at a constant rate per hour of work done – telesales might work like that – but sales jobs based on closing more complicated deals and building relationships just don’t work that way.

British Gas argued that the commission paid to Mr Lock was based on an annual sales target which took holiday into account. The AG said (para 43 &44) that there was no clear evidence for that and that in any event that would breach the rule against rolled-up holiday in Robinson Steele. I think that misses the point. This isn’t about rolled-up holiday, but about how many sales you would expect a good sales person to make over the course of a year and working out a commission scheme accordingly.

Implications

If this AG opinion is followed then things are going to get pretty complicated. I can think of all sorts of ways in which an employee might try to ‘game’ the system to make sure that no commission would normally be paid during a holiday period, so as to maximise the windfall when the holiday pay is calculated and has to include a sum representing commission. Also, I don’t quite see how just paying an average commission payment during the holiday period itself will work. Mr Lock would normally be paid during his leave for the commission he had earned before taking his holiday. It is his subsequent wages which suffer – when he is paid after his holiday and has lost the opportunity to be paid commission in respect of work he would otherwise have completed. When would that actually need to be paid?

I would love to hear suggestions about how commission schemes could be made to comply with the AG opinion. Whatever the eventual outcome of this case, however, we clearly need to revisit the whole definition of a week’s pay for the purposes of the Working Time Regulations. The definition we have in the Employment Rights Act just isn’t up to the job anymore. I’m sure BIS would be grateful for any suggestions in the comments about how we can define a week’s pay in a way that the CJEU will accept, and which normal mortals can actually understand.

Mba, Article 9 and the test of Indirect Discrimination

Ms Eweida, you may recall, is the British Airways employee who wanted to wear a cross on a necklace over her uniform so that others could see it. She considered that that was a religious belief. Over-simplifying, doing what she wanted to do meant a breach of her employer’s dress code. Ms Eweida complained that, amongst other things, she was the victim of an act of indirect discrimination.

The test of indirect discrimination is now to be found at Equality Act 2010s. 19. The constituent elements of the test are:

  1. A provision, criterion or practice (“PCP”) must be applied to the claimant;
  2. The respondent must apply it (or the Tribunal must be satisfied that they would apply it) to people who do not share the claimant’s protected characteristic (in this case, holding the belief);
  3. The PCP “puts, or would put, persons with whom [the claimant] shares the characteristic at a particular disadvantage”;
  4. The PCP puts or would put the claimant at that disadvantage; and
  5. The respondent cannot show it to be a proportionate means of achieving a legitimate aim”.

In the domestic proceedings Ms Ewieda failed at the third hurdle. She could not establish that there were others who shared her particular belief. This is often referred to as the requirement for a “group disadvantage”. Solitary disadvantage, the Court of Appeal found, was insufficient. Denied a domestic remedy, Ms Eweida went to the European Court of Human Rights. Again, rather over-simplifying, the ECtHR decided that the wearing of a crucifix in the manner proposed by Ms Eweida amounted to a manifestation of religion falling within Art 9(2) of the Convention:

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The Court decided that the interference with the manifestation was not, in the particular circumstances, proportionate. The UK should have protected Ms Eweida’s right to manifest her religion and had failed to do so.

Whilst the reasoning was clear it left unaddressed a very significant question. The claim had not failed because the Court of Appeal had decided that the PCP could not be justified; it failed because it could not be shown to have had the necessary indirectly discriminatory effect. The question of justification did not arise. So was the effect of the ECtHR’s decision that element 3 of the statutory test was to be regarded as incompatible with Article 9.

The Court of Appeal has now addressed this question in its decision in Mba v Mayor and Burgesses of the London Borough of Merton. Mrs Mba wanted to obey the Fourth Commandment and refrain from working on Sundays. The Council needed to provide care 24 hours a day and seven days a week to those living in the children’s home at which Mrs Mba worked. Having accommodated her desire not to be rostered on Sundays for a period, the Council decided that it could no longer continue to do so. Following an unsuccessful grievance, Mrs Mba resigned.

It was accepted that the requirement to work Sundays was indirectly discriminatory. The argument was focussed on issue 5 above: whether the justification defence was available. There was no dispute that the Council had a legitimate aim so that the argument was focused, narrowly, on the question of proportionality. It was not a case, therefore, directly concerned with what one might call “the unresolved Eweida question”.

The Employment Tribunal had, in assessing proportionality, taken into account three specific factors. Only one matters for present purposes: the Tribunal had taken into account the fact that sabbatarianism was not, in its view, a “core component of the Christian faith”. A lot of Christians work on Sundays.

Christians might take the objection that judging what religion requires by what adherents actually do is a misguided exercise. We are all sinners. The Court focused on a rather different issue: whether the number of people affected was relevant to justification.

Maurice Kay LJ decided that that the Tribunal had erred in its approach to justification. It should not have been asking how many Christians were affected. It should have been looking at the extent of the impact on sabbatarians, i.e. those who shared Ms Mba’s particular belief. Once one was satisfied that others were affected adversely (so as to jump hurdle 3), the number of those affected was not something that was relevant to the assessment of proportionality. He specifically did not place reliance on either Article 9 or Eweida which he considered to be a case that was “entirely fact sensitive”.

Elias and Vos LJ took a different approach – one that depended upon the impact of Article 9. Patrick Elias (whom I adore with a near religious fervour) tackles the unresolved Eweida question head on. He says the “group disadvantage” requirement (ie, hurdle 3) cannot be read down. Reconciling the domestic legislation with the Eweida decision will in practice, therefore, either take a differently minded Court of Appeal, the Supreme Court or legislation. Article 9 could be used, however, to determine how the proportionality question should be answered. The effect of Eweida was that:

It does not matter whether the claimant is disadvantaged along with others or not, and it cannot weaken her case with respect to justification that her beliefs are not more widely shared or do not constitute a core belief of any particular religion.

Both Elias and Kay LJJ took the view that the smaller the group that shared a claimant’s belief the easier it should be to accommodate it. If number of adherents was a relevant issue, therefore, it had the opposite effect to that which the respondent might have supposed.

With all three judges deciding that the Tribunal had erred in law, did Mrs Mba win? Nope. It was decided that since there was in practice no way of accommodating Mrs Mba’s beliefs, the outcome would have been no different even if the Tribunal had adopted he correct analysis.