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.