Sitting in Court 3 of the Royal Courts of Justice last week, I was surprised to hear Susan Chan, counsel for the Lord Chancellor in his defence of UNISON’s judicial review of the ET fees regime introduced in July 2013, calling in aid a new, specially-produced statistical analysis of ET claims by the Department for Business, Innovation & Skills (BIS). For I’d always got the impression – not least from a series of tweets by the BIS employment relations minister, Jo Swinson – that BIS ministers regard ET fees and their impact on access to justice as a matter not for them, that their own hands are squeaky clean. But here was BIS, proactively aiding and abetting the Ministry of Injustice in the High Court.
This BIS statistical analysis was so new that it hadn’t been included in Ms Chan’s detailed grounds of defence, let alone published. Indeed, Ms Chan wasn’t even able to produce a copy of it in court for the judges and UNISON’s counsel, Karon Monaghan, to examine. However, Ms Chan gave a solemn undertaking that BIS would publish the analysis at the same time she submitted a copy to the Court.
And so it was that, just before 6pm on Friday evening, BIS published its ad hoc statistical analysis. Based on findings from the Survey of Employment Tribunal Applications (SETA) 2013, published in June, the eight-page document sets out “further analysis based on the [SETA] survey dataset on the characteristics of claimants who would have been required to pay a fee at the time of their claim, if the current fee regime had been in force.”
Most of the document’s eight-pages are taken up with guff demonstrating the reliability of its few findings. If you think it’s about time you learnt about 95% confidence interval lower and upper bounds, then the BIS document is as good a place to start as any other. The first of these findings is that 75 per cent of the single claims in the SETA sample group would have attracted the higher Type B fees (a £250 issue fee, and a £950 hearing fee), and only 25 per cent the lower Type A fees (a £160 issue fee and a£230 hearing fee). And the document goes on to give the following breakdown of cases in the sample group, by fee-type and gender.
| Women | Men | |
| All cases | 43% | 57% |
| Type A fees | 36% | 64% |
| Type B fees | 45% | 55% |
It’s not entirely clear to me how or why Ms Chan thinks these figures support her defence against UNISON’s case that the fees regime is indirectly discriminatory to a protected characteristic group such as women (one of the two grounds of UNISON’s claim for judicial review, the other being that the fees regime breaches the principle of ‘effectiveness’), but the overall 25/75 breakdown by fee-type is certainly a very interesting finding. Because it’s pretty much the exact opposite of the breakdown of cases by fee-type that the Ministry of Injustice projected in May 2012, in its final regulatory impact assessment of the fees regime. (Please note that my term ‘pretty much’ is not the same as ‘within a 95 per cent confidence interval’).
That Ministry of Injustice projection – set out in paragraph 4.10 of the RIA, and based on the allocation of cases by HMCTS into short, standard and open tracks – was that 64 per cent of cases (i.e. single claims + the relatively small number of multiple claimant cases) would attract the lower Type A fees, and 36 per cent the higher Type B fees.
So who is right? If the Ministry was right with its 64/36 projection, then the BIS ad hoc statistical analysis, and its breakdown of claims by fee-type and gender, is quite possibly nowhere near as reliable as BIS claims. Indeed, it could well be a pile of pants. But if BIS is right with its 25/75 breakdown, then the Ministry misled Parliament (and everyone else) with its projection. Ms Chan’s job is now done, at least until the judicial review progresses to the Court of Appeal, but maybe now that BIS has made ET fees its issue too the previously elusive Ms Swinson can give us a few answers. At the very least, BIS should now offer an explanation of why it chose to overlook this glaring discrepancy when handing its findings over to the Ministry, and when publishing them in such unseemly haste on Friday evening.
And when she’s about it, perhaps Ms Swinson can also tell us when Autumn ends. In her detailed grounds of defence, Ms Chan informed Lord Justice Elias and Justice Foskett that the greatly anticipated review of the ET fees regime by the Ministry of Injustice (perhaps now with the help of BIS) will “take place this Autumn”. Maybe they operate to a different seasonal structure in government, but there are only 58 shopping days left until Christmas. Which in my house is not an autumnal event. And they haven’t even started the review yet.
Perhaps they are secretly hoping that Lord Justice Elias and Justice Foskett will save them the trouble.
Hard Labour 
Wasn’t part of the analysis used to show that women were not in fact the majority of those bringing type B claims? I think the first hearing had worked in the basis that about 55 per cent of type B Claims were brought by women but these figures imply that isn’t so.
Of course that doesn’t affect your main point which is (to paraphrase) what a complete botched job this whole fee debacle has been.
Yes, you’re right of course, Darren. But as the BIS analysis goes no deeper than all Type B claims (i.e. including UD), I don’t think it shows anything at all. You’d really need to break the figure of 45% of Type B single claims being by women down to Type B discrimination claims and other Type B claims, at the very least. We know very well that more men than women claim UD. And BIS can’t even go that far. It may well impress the two High Court judges, who are no doubt weighing up how brave they’re feeling, but it’s all pretty meaningless. Certainly not worth rushing out a BIS publication for. Shows just how far standards have fallen under the Coalition.
You were there and I wasn’t, but my understanding is that of the four lines of argument originally put forward by Unison (effectiveness; equivalence; breach of PSED; and indirect discrimination) leave to appeal was refused by the Court of Appeal on all except effectiveness; so that is the only line of argument still running in England. Is that wrong? It seems to be time to think again about getting proceedings up and running in Scotland, where the equivalence argument is so much stronger. I put links up to most of the significant court documents in both jurisdictions for my paper for last week’s Scottish Discrimination Law Association conference at http://www.jonathanmitchell.info/uploads/SDLA-EHRCtribunalfees231014.htm and hope to update this soon.
You may be right in relation to UNISON’s now stayed appeal to the Court of Appeal, Jonathan, but this is a fresh claim for JR in the High Court, and there are definitely two grounds: effectiveness; and indirect discrimination. Personally, I think effectiveness is the strongest ground, but then I’m not a lawyer. I also think that, if you went into 100 random pubs, showed drinkers the ET stats and asked them whether fees are obstructing workers’ access to justice, you’d get an immediate, clear, and straight answer in at least 95 pubs. But, sadly, the High Court is not a pub.