NMW naming & shaming: a start, but not much of one

So, Vince Cable has (sort of) stuck to his word. Back in January, he told MPs that he expected to see “a significant number” of employers, found by HMRC to have flouted the National Minimum Wage, to be ‘named & shamed’ under the new BIS scheme “by the end of February”.  The new scheme came into being on 1 October last year, replacing a previous scheme, introduced in January 2011, under which only one employer was ever named & shamed.

And so, on the very last day of February, BIS has just issued a press release in which it names five offending employers:

  • Peter Oakes of Peter Oakes Ltd, Macclesfield, neglected to pay £3619.70 to 2 workers
  • Lisa Maria Cathcart of Salon Sienna, Manchester, neglected to pay £1760.48 to a worker
  • Mohammed Yamin of Minto Guest House, Edinburgh, neglected to pay £808.56 to a worker
  • Anne Henderson of Chambers Hairdressers, Middlesbrough neglected to pay £452.22 to a worker
  • Ruzi Ruzyyev a car wash operator in Carmarthen neglected to pay £225.38 to a worker

However, as the TUC was quick to point out, all five are “small businesses who’ve underpaid [just one or two] members of staff. There are companies out there who are cheating hundreds of staff out of a legal minimum wage. These are the biggest offenders and their pay crimes must be made public too.”

Moreover, I’m not sure I’ll find any dictionary that defines ‘five’ as ‘a significant number’.  HMRC imposed penalties for flouting the NMW on just over 700 employers in 2012-13, and over 900 employers  in both 2011-12 and 2010-11.  So it seems reasonable to conclude that HMRC has imposed such penalties on some 250-400 employers since the new ‘naming & shaming’ scheme came into force on 1 October last year (and yes, I have asked for the actual number, by means of a FoI request, but HMRC has declined to answer).  Even allowing for the appeal process, which Cable said in January takes “roughly 150 days” – though quite why it should take that long in all cases isn’t at all clear – we might have expected a first tranche of at least 60 employers to have been named & shamed by now.

So, why have only five (small) employers been named & shamed to date?  And will a significant number of employers be named & shamed in the coming weeks and months?

Time will tell. But, credit where credit’s due, at least BIS has made a start.  Let’s hope those press releases keep coming.

Just how desperate is the MoJ to keep a lid on the impact of ET fees?

Last week, in rejecting the judicial review brought by UNISON, two High Court judges noted the “dramatic fall in [employment tribunal] claims” in September, the most recent month for which official figures are available, and made clear they would expect to hear the issue again should the Lord Chancellor’s “optimism” that the number of claims has since bounced back to more normal levels prove unfounded.  As I wrote elsewhere, the judges nailed Grayling’s genitals to the wall, and – if you’ll excuse the pun – a lot now hangs on the next set of quarterly statistics.

Which begs the question: why is the Ministry of Justice so resistant to issuing any more recent statistics, if they would remove the Lord Chancellor’s genitals from risk?  In recent weeks, the Ministry has declined to answer a straightforward parliamentary question on the matter, and has wriggled its way to not answering repeated Freedom of Information requests from me.

In those FoI requests, I asked both for basic figures on the number of ET claims in the months since September, and for the number of ET fee remission applications made and refused.  And in November, in response to a FoI request by Plumstead Law Centre, the Ministry had actually answered the latter question (FoI 86412).  So, after they had stonewalled my request, submitted in late December, for more recent figures, on 20 January I made a further request, using exactly the same wording as Plumstead Law Centre had in November.  And this is the reply I received on Wednesday:

Thank you for your email of 20th January 2014, in which you asked for the following information from the Ministry of Justice (MoJ):

“How many Employment Tribunal Fee Remission applications have been received by HMCTS since 1 July 2013, and how many of these applications were rejected?

Your request has been handled under the Freedom of Information Act 2000 (FOIA).  I can confirm that the Ministry of Justice holds information that you have asked for.  However, because the cost of complying with your request would exceed the limit set by the Freedom of Information Act, on this occasion I’m afraid I will not be taking your request further.  In this letter I explain why that is.

The law allows us to decline to answer FOI requests when we estimate it would cost us more than £600 (equivalent to 3½ working days’ worth of work, calculated at £25 per hour) to identify, locate, extract, and then provide the information that has been asked for.  In this instance to provide you with the information we would be required to conduct a manual trawl of fee remission files to obtain the information requested. Each case file would take approximately 15-20 minutes to go through the file, to identify if that application was an application which had been re-submitted, the level of fee payable and the outcome/decision made.

You refer in the body of your email request that information was provided previously in FOI reference 86412.

The information provided in [that] response was taken from a manual count of the remission applications received and processed by the Employment Tribunal (‘ET’) and not taken from the supplier responsible for the maintenance of the fees and remission database (Jadu Ltd). Although this information was provided it should have been explained that this was a manual count and may not be an accurate number of the applications received.  This manual count is no longer being carried out by the ET, as the information is now recorded on the remission database.  To obtain the information requested requires interrogation of the employment tribunals’ fees and remission database, and quality assurance checks on that data to ensure it is accurate, reliable and in a form suitable for publication.

We are in the process of putting this system in place, but it is not currently available.  As explained in the response to your previous request we are not in a position to provide the information requested without manually trawling through all of the files where a remissions application has been received.  This process is estimated to cost more than the limit of £600.  

So, the number of fee remission applications made and decided is now recorded on an ET fees & remission database. But to extract from that database the number of ET fee remission applications made and decided to date would involve more than 3½ days of work? Really?  What is recorded on this ET fees & remission database, if not the number of ET fee remission applications made and decided?  How much is the Ministry paying Jadu Ltd. to provide and maintain this database?  Have I stumbled across yet another public sector IT fiasco?

Or is the Ministry just telling porkies to protect the Lord Chancellor’s genitals from High Court judges?

Postscript:  Since posting the above, I’ve come across this written answer, yesterday, to a parliamentary question by Ian Murray MP, seeking the number of ET fee remission applications made and determined:

Mr Vara: Data concerning outcomes of fee remission applications made, in employment tribunal cases and in other court and tribunal jurisdictions, are not routinely published.

HM Courts and Tribunals Service is working with partners to develop appropriate system reporting tools that will enable extraction, interrogation and subsequent quality assurance of data, including the data requested. Until those system reporting tools are developed, later this year, we will not be able to provide the data requested.

The Government has previously said that it plans to publish a Post Implementation Review, assessing and reporting on the impacts of fee-charging on the employment tribunals system.  The reporting tools we are developing will help us to undertake that work.

As in my previous answer, my officials are currently undertaking this work, and I will write to the hon.  Member as soon as I am able.

So, the Ministry of Justice is paying Jadu Ltd. to provide and maintain an ET fees & remission database that currently has no reporting tools, and therefore cannot provide any, er, data.  Someone should sort that out.  Because the Lord Chancellor really doesn’t like to see taxpayers’ money wasted on IT fat cats. [Are you sure that’s right? Ed]

Postscript 2: But what is this? Oh, it’s the website of Jadu Ltd., and their “exemplar case study” number 23: ET fee payments.  Yep, that’s the ET fees & remission database.  So, what does the Jadu “exemplar case study” tell us?

Well, somewhat superfluously, it tells us that “potentially massive savings” to the Ministry of Justice have “huge dependency” on Jadu delivering “a high quality IT system”, because – and I’m really not making this up – “media reaction to IT failure [could] significantly amplify the political sensitivity and national media reaction”.  Gosh, really?

Yes, really.  So, a “product owner was established at MoJ and at Jadu, both of whom worked closely to make key decisions”.  Well, that has to be better than only one of them working closely.  Whatever, they “communicated on a daily basis”, re-adjusting the priorities and “moving more important things up the list and less important things down the list”.  Phew, for a minute there I thought they were going to get it the wrong way round!

Not only that, but the closely-working product owners “established a Definition of Done”.  Note the capitals.  Not done, but Done.

After that, well, there was “change audit and versioning”, some “migration and roll back tests”, a few “sprint demos”, a dash of “code versioning”, some “user and usability tests”, and – finally – “iterating the delivered solution”.  This was essential, because “with many IT projects in the public sector failing to deliver value, it is essential that the Government pro-actively promotes better ways of working”.  You can say that again.

And all this versioning and “Test Driven Development” meant that the delivered ET fees & remission database is “of a very high standard”, with “216 different user journey routes”. Two hundred and sixteen!  Not only that, but it was “launched on 27 July, two days ahead of the deadline”.  And a “well rehearsed launch” led to “a very high quality service being delivered”.  Yes, yes, we got that.  Unfortunately, being of “a very high standard” seems not to include having the “reporting tools” to deliver basic data on ET fee remission applications.  Maybe no-one versioned the code for that.

But hey, Jadu “built what was needed, not what was agreed at the start”.  No surprise, then, that in November Jadu and it’s “exemplar 23” – that’s the Jadu ET fees & remission database to you and me – was shortlisted for an award.  Here’s a nice photo of the Jadu team off to the award dinner.

And all this ‘high quality’ for just … £1.5 million!  Well, that’s what the Jadu website says.  According to a Ministry of Justice press release, seemingly issued to coincide with the award dinner in November, it was £2 million.  But I guess only little people quibble about £500K.

Yes, the Lord Chancellor with an aversion to fat cats has handed as much as £2 million to Jadu, in return for a database that, according to the Ministry of Justice, can’t (yet) count basic data.  And, since you ask, Jadu are doing very nicely on it, thank you.  Indeed, thanks to the Ministry of Justice contract, Jadu has “been transformed, with significant growth and investment”, and has now “expanded into Australia, becoming a truly global player”.  This is what the Lord Chancellor had to say in November:

“Jadu is a perfect example of how small businesses in the private sector can help transform our justice system, driving innovation and better value for hardworking taxpayers – and it’s something I want to see much more of.”

But the last word has to go to Suraj Kika, founder and chief executive of Jadu and, seemingly, a budding philosopher:

Sometimes, to fix things – you need to break them first.