Yesterday saw the publication by the Ministry of Injustice of the latest set of quarterly ET statistics, covering the period April to June 2015 (i.e. Q1 of FY 2015/16). This is no longer as exciting an event as it used to be, back in the first half of 2014, when each new set confirmed the dramatic and sustained impact on claim/case numbers of the hefty, upfront fees introduced on 29 July 2013. But for wonks like me the statistics are still of great interest, not least for what they tell us about the trend in claim outcomes, which in turn tells us quite a lot about the ‘rough justice’ effect of fees. So here are a few charts, covering what I see as the most interesting aspects of the statistics.
ET case numbers now appear to have stabilised
For obvious reasons, there was great variation in the monthly number of new ET cases in the summer of 2013, linked to the introduction of fees, and in the spring of 2014, linked to the introduction of ‘mandatory’ early conciliation by Acas. However, the figures for Q1 of 2015/16 suggest that case numbers have now stabilised, at about one-third of pre-fees levels.
Some 50,000 single claims/cases have already been ‘lost’ to fees
In July, when dismissing Unison’s appeal against the High Court’s rejection of its two applications for judicial review of the fees regime, Lord Justice Underhill stated: “It is quite clear … that the introduction of fees has had the effect of deterring a very large number of potential claimants.” And we can easily quantify that “very large number”, by comparing the actual number of single claims/cases against the number we could have expected, had fees not been introduced in July 2013. To do so, we simply need to generate projections allowing for (a) the “historic downward trend” in case numbers that began in 2010/11, but which ministers either failed to spot or ignored in 2012, when deciding to introduce fees; and (b) the introduction of Acas early conciliation, which was intended to bring about a 17 per cent reduction in the number of claims, in April/May 2014.
Clearly, that “historic downward trend” may not have continued at a constant rate (or even at all) into recent quarters, and the actual impact of Acas early conciliation appears to have been more modest. So the following chart sets out two alternative projections (one low, one high) of single claim/case numbers. I won’t bore you now with the detailed assumptions behind each projection, but if you’re keen to know just get in touch.
Based on these projections, and ignoring multiple claimants (the numbers of which are not so predictable), Underhill LJ’s “very large number of potential claimants” deterred by fees was somewhere between 47,350 and 52,200, as of 30 June 2015, and continues to rise by some 5-6,000 every quarter (so, at the time of writing, might well be approaching 60,000). Furthermore, based on historic case outcome trends, about 80 per cent of those 47-52,000 workers would have obtained a favourable judgment on or settlement of their claim, had fees not been introduced.
There is still no evidence to support the Grayling-Hancock theorem
According to the Grayling-Hancock theorem – which seems unlikely to win The Fields Medal for its authors – every single one of those 47-52,000 single claims/cases ‘lost’ to fees was a “vexatious”, “bogus” or otherwise unfounded claim that should never have been brought in the first place. Yep, every single one – for there has been absolutely no ‘rough justice’ as a result of the fees.
However, were it the case that all (or even just most) of the 47-52,000 single claims/cases ‘lost’ to fees were “vexatious” or otherwise without merit, then we could expect the overall success rate of claims to have risen substantially in recent quarters (the average age of a concluded case is about nine months, so the vast majority of claims determined in recent quarters will have been issued after July 2013).
Yet, as the following chart shows, the overall success rate has fallen steadily in recent quarters, from 79% in 2013/14, to just 62% in the last quarter of 2014/15. Yesterday, I tweeted a hastily-constructed chart showing that, in Q1 of 2015/16, the overall success rate leapt to 75 per cent – how they must have cheered in the Ministry of Injustice!
However, on closer inspection of Tables 2.2 and 2.3 of the official stats, we can see that this figure was substantially inflated by unusually high proportions of equal pay claims being conciliated by Acas or withdrawn (80 per cent, compared to 40 per cent in Q1 of 2014/15), and of unfair dismissal claims being conciliated by Acas (69 per cent, compared to 32 per cent in Q1 of 2014/5). And, of course, outcome figures are given in terms of jurisdictional claims, not cases, so are easily skewed by one or two large multiple claimant cases. If we remove those two jurisdictions from the picture, then the overall success rate in Q1 of 2015/16 falls to 62 per cent – the same as in the previous quarter.
Clearly, we’ll have to see (when the statistics are published in December) what happens in Q2 of 2015/16, but I think it’s fair to say that, at the time of writing, there remains no evidence whatsoever for the Grayling-Hancock theorem.