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.