The one in which Mrs Wonky and I are as one

Last weekend, as Mrs Wonky and I walked to the bus stop together – not something that happens very often – conversation turned to the abolition of the paper tax disc. We know how to live, do we Wonkies. How the ****, Mrs Wonky wanted to know, do the wardens know who to clamp these days?

I may have muttered something about digitalisation before we mwah-mwahed and went our separate ways, but it was quite early and I was busy trying to solve, in my head, an outstanding clue from that Saturday’s Guardian prize cryptic crossword. Well, the setter was Mrs Wonky’s half-sister’s daughter – the incomparable Arachne – so I was simply fulfilling familial duty. And cousin Sarah had come up with some crackers, such as: Principled Greek, close to Syriza, agreed to be bound by resolution (10).

Anyway, it turns out Mrs Wonky is a better policy wonk than I may have credited in the past. Because a few days later it emerged HM Government has lost some £80 million in car tax revenue in just 12 months, as the number of unlicensed vehicles has doubled. So much for digitalisation. As Mrs Wonky postulated, thanks to the absence of colour-coded paper tax discs the wardens now don’t know who the **** to clamp. Even with their hand-held, digitalised thingamabobs. And their Nazi uniforms.

Now, £80 million may not seem very much, especially when set against the £4 trillion that the suddenly profligate George Osborne will be splashing out on what remains of the Welfare State over the next four years. But it’s still quite a lot of money. It’s certainly more than Mrs Wonky and I bring in each year, despite our obvious brilliance. And, as I quickly realised – me being a genuine policy wonk, unlike Mrs Wonky, who works in what she calls ‘marketing’ but I still call ‘fundraising’ – it’s equivalent to about four years’ worth of abolishing the Coalition government’s employment tribunal (ET) fees.

Back in the happy-clappy days when even serious people like Sean Jones QC believed Ed Miliband would win the May 2015 general election and justice secretary Sadiq Khan would then reverse all of Chris Grayling’s stupidity, I suggested that the total cost of scrapping the hefty, justice-denying ET fees introduced in July 2013 would be in the region of £20 million per year. Net income from the upfront fees may be negligible – just £4.3m in 2014-15 – but the near 70% fall in case numbers has generated substantial operational cost savings.

So, £80 million could go quite a long way, if one was genuinely concerned that mistreated and exploited workers have access to justice, so as to ensure a level playing field for law-abiding employers. Especially if one was prepared to consider replacing the existing, grossly disproportionate ET fees regime with an income-generating, nominal fee regime for both claimants and respondent employers.

As Stephen Cavalier of Thompsons Solicitors noted in his oral evidence to the justice committee of MPs earlier this month (see Q127), “if the [ET] system is to be funded by users, it should be taken into account that employers are users, as well as claimants.” Such a pragmatic, balanced approach could replace much if not all of that £20 million per year cost of abolishing the current fees regime. So that £80m could last a lot longer than four years.

But then that would be giving in to the existential threat to the UK economy of the Vexatious Claim Ogre. So Michael Gove and his officials at the Ministry of Injustice probably won’t be going there. They are too busy looking for ways to throw millions of pounds down the toilet. Like abolishing paper car tax discs.

Anyway, here’s me and Mrs Wonky as one, at Grounds for Sculpture, New Jersey, August 2011:



Will the Justice committee prove to be au fait with access to justice?

We should perhaps take encouragement from the fact that, on the same day it published the transcript of its oral evidence session on the impact of the Coalition’s disastrous employment tribunal fees, the Conservative-majority Justice Committee of MPs also published a scathing report calling on ministers to scrap the Coalition’s disastrous criminal court charge. However, even a quick reading of the transcript reveals deep levels of ignorance and prejudice on the part of some committee members that may yet prevent delivery of a double-whammy to everybody’s favourite justice secretary, Michael Gove.

In particular, several Conservative members of the Committee appear unable to shake off their irrational fear of the patently non-existent Vexatious Claim Ogre. “What is the solution for the employer facing a vexatious complaint? What is your solution to that particular issue, which affects lots of small businesses around the country?” demanded Philip ‘filibuster’ Davies, blithely ignoring a mountain of actual evidence, from the 2007 Gibbons review of employment tribunals – which concluded that “weak and vexatious cases make up only a small minority of tribunal claims” – to any number of past statements by the Federation of Small Businesses (FSB) that the number of such businesses affected by a tribunal claim, vexatious or otherwise, is actually very small indeed.

In October 2014, for example, in its written evidence to the Small Business, Enterprise & Employment Bill committee, the FSB stressed to MPs that “only 3 per cent of our members were summoned before an employment tribunal between 2004 and 2009”, and in its oral evidence to the committee it happily noted that “a very small percentage of our members are damaged by tribunals, which is good news”. Indeed, as noted previously on this blog, at the time Coalition ministers decided (in 2011) to introduce hefty upfront claimant fees, the average private sector employer risked facing an ET claim about once every 27 years. Now, it’s about once every century. Can our valiant entrepreneurs really not cope with such minuscule risk? Maybe they should just stay in bed.

And before anyone says “yes, but 2004-09 is a long time ago”, Mr Davies himself had gone back to the last century to look for data that might prove the existence of the Vexatious Claim Ogre. In what must have been a frustratingly short intervention for a man used to talking non-stop for 52 or even 90 minutes at a time, Mr Davies stated that “between 1999 and 2005, the success rates for discrimination cases at employment tribunals were 28% for sex discrimination, 15% for race discrimination cases and 29% for disability discrimination cases. To most people, that would indicate that quite a lot of vexatious [claims] were being dealt with by the employment tribunals.”

Fortunately, Sybille Raphael of Working Families was on hand to point out to Mr Davies that his figures “do not take into account the far bigger number of claims that are settled, either during the tribunal process or before the tribunal process. They would not be settled if there was no tribunal there.” Shantha David of Unison noted that, in his written evidence to the Committee, the current President of the Employment Tribunals, Brian Doyle, had indicated “that only a very small percentage of claims can be [readily] identified as weak or unmeritorious, and that we need to be a bit careful about the way in which we bandy around the term ‘vexatious’.” Furthermore, Ros Bragg of Maternity Action noted that “we see no evidence that fees are effective in removing weak or vexatious claims”, and Rebecca Hilsenrath of the EHRC agreed that “there is no evidence of the fees having an impact on vexatious claims.”

I suspect that Sybille, Shantha, Ros and Rebecca would be more likely to convince the Pope that God does not exist than to rid Mr Davies of his faith in the Vexatious Claim Ogre, but some of the other myths about fees propagated by Matt Hancock and his mates in the tabloid press took a good pasting during the evidence session. Front-line practitioners Kate Booth of Eaton Smith LLP, Stephen Cavalier of Thompsons solicitors, and Shantha David all confirmed there has been no significant displacement of ET claims (such as breach of contract claims) to the county courts. And, in what may well prove to be the killer evidence to the committee, Kate Booth – who acts for both employees and employers – laid to rest the Ministry of Injustice’s canard that fees would “encourage the use of alternative dispute resolution services, for example, Acas conciliation”:

I sit on both sides of the fence. When I advise an employer, why would they engage in early conciliation? You wait for the employee to pay a fee. Ultimately you want to call their bluff – are they prepared to put their money where their mouth is? – so you sit back and see whether they do it. There is absolutely no incentive to engage early, unless you know you are going to go down. Why would you?

Stephen Cavalier confirmed that “fees have had the opposite effect [to that intended by ministers] – employers sit on their hands and do not engage”, while Sybille Raphael told the committee that, in her experience, “employers [now] wait until the very end – until the hearing fee is paid, three weeks before the hearing – to engage in meaningful discussions, wasting everybody’s time and the tribunal’s resources.” And Shantha David noted that “the average clearance times for multiple [claimant] cases are actually longer than they used to be.”

On fee remission, Emma Wilkinson of Citizens Advice noted that “the complexity of the eligibility requirements is particularly harsh for vulnerable [CAB] clients,” while Sybille Raphael told the Committee that “in our view the fee remission system is very unfair. For instance, if you have just above £3,000 in savings – I believe that we want to encourage people, especially low-paid employees, to save – you cannot benefit from fee remission. We have terrible cases of women who were sacked the minute they told their employers that they were pregnant, but cannot bring a claim for unfair dismissal because there is no way that they can spend nearly half their savings on a highly uncertain employment tribunal claim – especially when we know that, even if they win, there is a 50% chance that the employer will not pay anything, so she would be £1,200 worse off for having dared to claim her rights.”

On the question of whether the cost of the employment tribunal (ET) system should be “moved away from the taxpayer on to those who can afford it”, Sally Brett of the TUC gave the committee members a quick lesson on the wider social and economic benefits of the system:

Often a division is made between taxpayers and users of the ET system, but all taxpayers are potentially users of the ET system, [which is] a very important backstop to ensure that basic rights such as the right to the minimum wage, rights to paid holiday, rights to time off and maternity leave, and rights not to be unfairly dismissed or discriminated against are effective.

Those rights bring important social and economic benefits for this country. They ensure that more people can participate in the labour market without facing unfair discrimination. They give vulnerable workers more job security and stability of income. If there is not that ultimate sanction that employers may face if they breach employment rights, it encourages rogue employers to flout the law, which undermines and puts at a competitive disadvantage businesses that are striving to meet the [statutory minimum] standards or to exceed them and use good practice.

Hopefully, such evidence will help steer the committee towards the only just outcome of its inquiry, even if some of its Conservative members would personally much prefer to accept the laughable oral evidence of James Potts of Peninsula Business Services. Despite having to concede to Andy McDonald MP that he is “not au fait with the particular nuances of the [fee remission] system”, Mr Potts stuck to the line first set out in his firm’s evidence-free written evidence to the committee, that up is down and down is up, and “there really is not an access to justice issue” with fees because “access to justice is through the remission system” – the system, that is, with which he is not au fait.

Thieving an idea from FT journalist and legal blogger David Allen Green (see link in first paragraph, above), I can only imagine the conversation went something like this:

Tory member of the Committee: “So, this inquiry is to give Michael some political cover for a retreat?”

Bob Neill (Committee chair): “That’s right.”

Tory member: “In which case, we need the pro-fees evidence from the employer lobby to be really crap.”

Bob Neill: “We do.”

Tory member: “Peninsula Business Services?”

Bob Neill: “Make the call.”





The Independent: It isn’t, are you?

Having spent three decades banging my head against the brick wall of government policy-making, and trying to persuade our famously independent press and media to pay just a teeny weeny bit of attention to important issues of social and legal injustice, it never fails to amaze me how easy it seems to be for businesses with no evident goal other than their own enrichment to get their name and the services they offer in the paper. Indeed, sometimes those businesses make it look so easy that I’m simply left wondering what it is that I’ve been doing wrong for 30 years.

Take the Manchester-based Peninsula Business Services, a “consultancy firm providing advice to companies primarily on employment law and health and safety.” This is a firm so deeply committed to justice and corporate social responsibility that, last month, it told the Justice committee of MPs that the employment tribunal fees introduced by Equality Dave and his minions in July 2013 have “improved access to justice for all.” Yes, really. Not only that, but the fees “have, in the main, improved the quality of the claims presented at tribunal.” Which – duh! – explains why the success rate has gone down.

And I suppose that, given such insightful analysis, we shouldn’t be surprised that it is Peninsula Business Services that newspapers of record such as The Independent turn to for comment at times of national crisis. Times of national crisis such as the departure of Zayn Malik from One Direction, the staging of the Rugby World Cup, and the existential challenge of – cue scary music – Black Friday. Woooooo.

“Black Friday: employers fear online shopping will spur productivity meltdown” screamed the headline in yesterday’s (online) Independent. Yes, productivity meltdown! And how did the Independent learn of this approaching business armageddon? Well, “almost 8,000 employers have called a leading employment law consultancy in the last three days after being overwhelmed by holiday requests for November 27, or Black Friday. Peninsula Business Services said that many employers feared office productivity would be hit by online shopping after most of these holiday requests had to be denied.”

Not only that but, according to Alan Price, Employment Law Director of Peninsula Business Services, “employers were right to feel concerned about holiday requests and internet usage” over Black Friday. “With the Internet being an integral tool in the working environment and with every employee having access to it, unauthorised conduct can spiral out of control and policing employees’ Internet usage can feel like an overwhelming task”. Mr Price urged employers to “make sure their HR policies are up to date by throwing shed-loads of money at Peninsula Business Services”. [Yes, I made that last bit up]

PBS Black Friday

And, it has to be said, 8,000 is quite a lot of worried employers. It’s certainly 7,300 more than the nearly 700 “anxious employers” that, according to The Independent, called Peninsula Business Services over the weekend before the start of the Rugby World Cup in late September. “It’s almost as though the Rugby World Cup has cast a spell over rugby fans, causing everyday life to stand still, consequently resulting in employees forgetting that they have an obligation to the company they work for,” said Alan Price, who urged overwhelmed employers to get “an implemented up-to-date policy regarding expected conduct during sporting events by throwing shed-loads of money at Peninsula Business Services.”


And 8,000 – or 7,953 to be precise, as Peninsula are in the press release that, thanks to the obliging Personnel Today, we are able to read in full – is a lot more than the 220 calls that, according to the always on-point Independent, were made to Peninsula in March this year by “workers asking for compassionate leave following the news that Zayn Malik had quit One Direction.”

As ever, Peninsula’s Alan Price was on hand to tell the Independent‘s Jenn Selby that “it was a situation you just couldn’t make up. While I sympathise with One Direction fans, I hardly think this qualified as compassionate leave.” Clearly something of an expert on pop music as well as employment law, Mr Price went on to “draw comparisons between the event and that of the big parting of ways of Robbie Williams from Take That in 1996, where [Peninsula] again experienced a huge spike in calls from concerned bosses.”

Hang on, I thought the Zayn Malik-related calls were made to Peninsula by “workers asking for compassionate leave”, not their bosses. Pah, who cares about such details, this is a time of national crisis, employers are overwhelmed by people skiving, everyday life is at a stand still, and PRODUCTIVITY IS IN MELTDOWN.

PBS Zayn Malik

Are hairdressers really *that* bad at paying the NMW?

With the Workers’ Party – or is it the Party of Equality? – leaving no stone unturned in its titanic struggle to “end discrimination and finish the fight for equality in our country”, last month saw the Department for Business, Innovation & Workers’ Rights name & shame another 115 minimum wage (NMW) rogues. Well, another 113 NMW rogues, once you exclude the two businesses – London-based Danhouse Security and Scottish business C & R Tyres – the Department had already named & shamed for the very same breaches of the NMW, in November 2014 and February 2015 respectively.

How hard can it be to manage an Excel spreadsheet? Too hard for the mandarins at BIS, obviously.

The inclusion of Monsoon Accessorize for the retailer’s failure to pay an average of £72.68 to 1,438 of its employees predictably dominated press and media coverage, but otherwise the list of 113 was much like all previous rounds of naming & shaming in being comprised almost entirely of small fry – many of them very small fry indeed. Excluding Monsoon Accessorize, the average underpayment (and so financial penalty) was £2,537.65, and the average underpayment per worker just £1,124.53 (that is, less than the £1,200 that the Party of Equality thinks it is entirely reasonable to charge low-paid workers to pursue a tribunal claim for race, sex or other discrimination). And, excluding the 1,438 Monsoon Accessorize employees, NMW underpayments were recovered by HMRC for just 255 employees of the other 112 firms.

In 53 of all 113 cases, the total underpayment (and so financial penalty) was less than £1,000, and in all but 15 cases it was less than £5,000. In 77 of the 113 cases, just one worker was underpaid, and only in 13 cases were five or more workers underpaid by the employer. Lucky the Coalition government upped the maximum penalty to £20,000 per worker, eh?

And, as with previous rounds of naming & shaming, the list of 113 was dominated by local hairdressers & beauty salons (25); pubs, cafes and hotels (16); and second hand-car dealers (8). I know – not least because former BIS mandarin Bill Wells keeps telling me – that the NMW apprenticeship rates might be difficult for small hairdressing business owners to fully understand, but does that really explain HMRC’s apparent obsession with the sector? And when-oh-when are BIS going to start naming & shaming some of the 100+ social care employers that, back in April this year, then BIS minister Jo Swinson said HMRC were then investigating? (Yes, Bill, I know, there is absolutely no abuse of the NMW in the social care sector, the authors of all those reports saying the opposite are simply deluded).

So – not that Gem will notice, she’s far too busy fighting HR wars with her lightsaber at #CIPD15 – here’s an updated chart, showing the 398 NMW rogues named & shamed by BIS to date, by sector.

NMW Nov 15