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