Oh look, a new set of quarterly ET statistics …. zzzzzzzzz

Warning: This post contains selected statistics, taken in isolation and out of context (© S Vara)

I have already written here about how yesterday’s latest set of quarterly tribunal statistics has cast yet more doubt over whether we humans will ever solve the Hancock Theorem, the last great unsolved mathematical puzzle of our time. But that post contained only two charts. And that is never enough to satisfy Gem Reucroft. So here are some more. With new colours!

ET case numbers are now really, really boring

Never mind the denial of justice, just look at the stability! Great for management planning. In Q2 of 2015/16, there were 4,345 single claims, just 58 fewer than in Q1. Such uniformity is unprecedented, and suggests ET claim/case numbers really have hit rock bottom.


Except ….

One story partly hidden in the above chart is the long, slow death of the multiple claimant case – that is, the kind of case that, in 2011, provided Coalition ministers with their bogus reason to introduce fees.


Have such multiple claimant cases been displaced to the civil courts by fees? Or have Stefan Cross QC, and the trade unions, simply run out of local authorities and NHS trusts to bring equal pay claims against? I haven’t got a clue, but someone who must know is Shailesh Vara, the cleverest man in the Government, who’s been reading the report of his Ministry’s post-implementation review of ET fees for the past two months. One paragraph at a time, it seems.

One day – quite possibly within the next year or two – Mr Vara will get to the end of the report, and will then tell the rest of us what it says. Maybe it just doesn’t have enough colourful charts for someone of Mr Vara’s intellect. They could have asked me!

In the meantime …

… while the junior injustice minister makes his stately progress through the post-implementation review report, as of the end of September 2015 the number of single ET claims/cases ‘lost’ to fees since July 2013 was somewhere between 52,290 and 58,380. But then my projections are so selective and out of context. And, in any case, according to the Hancock Theorem, not one of those 52-58,000 claims would have been well-founded.

Yes, the ability of the Ministry of Injustice to calibrate their ET fees so precisely as to weed out up to 58,000 vexatious and otherwise unfounded ET claims without denying access to justice to one single exploited worker makes the RAF’s Brimstone missile – now pounding Syrian sand into even smaller grains of sand with great if highly expensive accuracy – look like, well, an unguided missile.



Impact of ET fees: a Hancock and bull story

Warning: This post contains selected statistics, taken in isolation and out of context (© S Vara)

So, today the Ministry of Injustice has coughed up another set of quarterly tribunal statistics – this one covering July to September 2015 (Q2 of 2015-16) – and we can hammer a few more nails into the coffin of that wonder of Tory intellectual thought, the Hancock Theorem of Vexatious ET Claims.

According to the second cleverest member of the Government – I’m sure Mr Hancock himself would concede top place to that titan of intellect, injustice minister Shailesh Vara – the success rate of employment tribunal (ET) claims should by now be bobbing around at or just below 100 per cent, all the vexatious and otherwise unfounded claims having been weeded out by the hefty, upfront fees introduced by the also very clever Chris Grayling in July 2013.

Unfortunately – not that the Cabinet Office minister gives a flying fuck – the Hancock Theorem has not been supported by the Ministry of Injustice’s own figures, even when taken in context. These have so far suggested that, far from going through the roof, the success rate has fallen significantly since mid-2014. Oops.

And today’s new figures will not increase Mr Hancock’s chances of winning the Fields Medal. Once again, in what is the sixth quarter since we could first have expected to see the impact of fees reflected in the outcome figures, the overall success rate – that is, including claims conciliated by Acas, or settled – is well down on pre-fees levels (but, at 63%, is one whole percentage point up on the last two quarters, so maybe there’s still some hope for the Hancock Theorem).

At 14%, the narrow measure of success is also down on pre-fees levels – and certainly not zooming towards 100 per cent, as the Hancock Theorem predicts. And, at 37%, the proportion of unsuccessful claims is once again significantly up on pre-fees levels, despite all the weak and vexatious claims having been weeded out by fees.

Luckily for Gem Reucroft, who likes charts, this is best illustrated by means of two charts:




Given that the Ministry statistics on which the above charts are based are highly selective, are taken in isolation and are 110 per cent out of context, I can’t really be arsed to explain the dotted lines in Q1 of 2015-16. But if you really need to know, all is explained towards the end of this previous post.




Vulnerable workers: Tories boldly go where Labour and the Lib Dems feared to tread

WARNING: This blog post contains words of praise for the Tories.

This post should have appeared on Hard Labour a couple of months ago. However, when I realised what I would be saying, I had to undertake a course of cognitive behavioural therapy. But I’m all right now.

Between 2000 and 2013, while working as employment policy officer at Citizens Advice, I wrote a deadly boring series of research and policy reports arguing for a consolidation of the three main labour market enforcement bodies – the Gangmaster Licensing Authority (GLA), the Employment Agency Standards Inspectorate (EASI), and the HMRC minimum wage enforcement team – into a single Fair Employment Agency fit for the 21st century, with the legal powers and resources to “root out the rogues” without imposing unnecessary regulatory burden on the great majority of compliant employers.

In the reports – and in any number of shorter articles, parliamentary submissions, campaign leaflets, and conference presentations – I noted that, all too often, vulnerable workers are too fearful of further victimisation or dismissal to issue an employment tribunal claim, the principal means of enforcing most statutory workplace rights. And, as a result, rogue employers can profit from exploitation with near impunity.

From the outset, my proposal was firmly opposed by the Great Protector of workers’ rights, the TUC. Protecting workers’ rights is a job for the trade unions, not government, I was told. And union membership was now growing so rapidly that all workers would be unionised by the 26th century. Well, all workers in whatever remained of the public sector in the 26th century, anyway.

However, as few if any of the tens of thousands of vulnerable, exploited workers seeking advice from CABx would live to cheer the arrival of the TUC’s cavalry, I plodded on. Occasionally, I would win over a key policy actor – the then Equal Opportunities Commission, the Institute for Public Policy Research, the trade union Unison – only to watch them get nobbled by the brothers and sisters at the TUC.

Then, in early 2006, the Labour government became interested, announcing – in a DTI policy document, Protecting vulnerable workers, supporting good employers – that “we need to ensure that vulnerable workers are not mistreated but get the rights they are entitled to.” Policy officials at the DTI (or was it BERR by then?) made encouraging noises. And in 2007 I was invited to join a Vulnerable Worker Enforcement Forum, chaired by the employment relations minister. This included senior officials from the enforcement bodies (including the HSE), as well as officials from each of their sponsoring departments, and my friends at the TUC were there to ensure nothing significant ensued.

Sure enough, when the Forum concluded in August 2008, having decided to do little more than create a single telephone gateway to the enforcement bodies – the Pay & Work Rights Helpline, since abandoned and rolled-up into the Acas helpline – the minister, Pat McFadden MP, told me that, while he agreed a Fair Employment Agency was a great idea, he couldn’t be arsed with all the inter-departmental wrangling that would be involved in setting one up. (To be fair to Pat, what I think he meant was “Gordon Brown won’t let me, and I can’t spend two years arguing with him”).

Fast forward to 2011, when (I’m told) the Coalition’s first employment relations minister, Ed Davey MP, used to wave a copy of my last report for Citizens Advice on the issue at BIS officials and demand to know “what we are doing about this.” Not a lot, seems to have been the answer, and in July 2012 a ministerial review of “the existing workplace rights compliance and enforcement arrangements, to establish the scope for streamlining them and making them more effective” quietly concluded that a single agency “would not provide significant benefits to workers.”

However, the idea appears to have stuck around in someone’s head, because in October 2014, at the Liberal Democrat conference in Glasgow, then business secretary Vince Cable MP quietly announced that his party’s manifesto for the May 2015 general election would promise a new Workers’ Rights Agency combining the remits of “the minimum wage enforcement section of HMRC, the working time directive section at the Health & Safety Executive, the BIS Employment Agency Standards Inspectorate, and the GLA.” According to Cable, this “joined-up enforcement approach” would “ensure the minority of unscrupulous employers who break the law do not get away with undercutting other employers who play by the rules.” So, there would be significant benefits to workers after all.

In the event, Cable’s clumsily-named Workers’ Rights Agency didn’t make it into his party’s 160-page manifesto, though when asked about this his then junior minister Jo Swinson tweeted “the idea’s still there.” By which Ms Swinson appears to have meant “the idea’s now been stolen by the Tories.”

For, while the Tory manifesto was as silent on the idea as those of the Liberal Democrats and Ed Miliband’s pathetically timid Labour – of six references to ‘enforcement’ in the Tory manifesto, five are to enforcement of immigration law, and one is to “tackling aggressive parking enforcement” – within a few weeks of his Clegg-free return to Downing Street, David Cameron announced the creation of “a new enforcement agency that cracks down on the worst cases of exploitation.” And Part 1 of the Immigration Bill – which earlier this week I watched being hand-delivered, all tied up in green ribbon, from the Commons to the Lords – establishes “a new statutory Director of Labour Market Enforcement, responsible for providing a central hub of intelligence and facilitating the flexible allocation of resources” between “enforcement of the national minimum wage by HMRC, the regulation of employment agencies by [EASI] and the licensing of legitimate labour providers by the GLA.”

OK, ‘Director of Labour Market Enforcement’ isn’t as snappy as Fair Employment Agency. But if it looks like a duck, waddles like a duck, and quacks like a duck, it probably is a duck. Indeed, it’s clear from the joint BIS and Home Office consultation exercise – which ends on Monday night – that the Director of Labour Market Enforcement not only looks, waddles and quacks like a Fair Employment Agency, but actually is my Fair Employment Agency in all but name.

The consultation document states that “the Director will have a high public profile as a leadership figure for labour market enforcement and against exploitation of workers,” and will “set out an effective and coordinated plan to promote compliance in areas where the intelligence indicates a threat of labour exploitation or greater levels of non-compliance. The Director will also need to be able to call on any of the enforcement bodies to assist in the implementation of that plan.”

Furthermore, the Director’s strategic plan will “set out, for the financial year ahead: the priorities for enforcement; the outcomes required from the enforcement bodies; and the budgets for the enforcement bodies, within the total envelope of available funding.” And “once approved by Ministers … the plan will be the starting point for all of the work of the three enforcement bodies [my emphasis].”

So, eat your heart out, brothers and sisters of the TUC. What Labour’s Pat McFadden and Gordon Brown couldn’t be arsed to do when they had the chance, and what the Liberal Democrats couldn’t even find space for in their 160-page tome of liberal do-gooding, the Tories are now doing, just like that.

Sure, it’s unfortunate they’re using an Immigration Bill to do so, and naturally a lot will depend upon that ‘total envelope of available funding’. But if the new Tory Government had simply wanted to diminish (or even abolish) the GLA, EASI and minimum wage enforcement, it could quite easily have done so without going to the trouble of creating its Director of Labour Market Enforcement, and without proclaiming its determination to “bring to justice those who are exploiting workers [and] stop such exploitation happening in the first place.”

So, well done you Tories. And now I’m going to go and lie down for a bit.

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Hurry up, Mr Vara!

If you were travelling to work on the 159 bus yesterday morning, and the peace of your journey was ruined by a lot of swearing, moaning and face-palming by a clearly disturbed man in the front seat, then I apologise. Yes, that was me. And I was reading my print-out of the Hansard of Tuesday afternoon’s Westminster Hall debate on the impact of employment tribunal (ET) fees.

At that point, I hadn’t even got to the Alice in Wonderland contribution of the junior injustice minister, Shailesh Vara. My huffing and puffing was due to the failure of Justin Madders, who had initiated the debate, and other opposition MPs to grasp that, far from rising dramatically since the introduction of fees in July 2013 – as one could expect if the fees were deterring only ‘vexatious’ or otherwise weak claims – the success rate of claims has fallen significantly.

“If the objective of introducing fees was to weed out unmeritorious claims, the policy has been a failure. The success rate has not really changed,” said Mr Madders, before reiterating, a minute later, that “Ministry of Justice statistics indicate that success rates have in fact remained broadly the same, rather than increasing.” Mr Madders even flourished some of those Ministry figures, stating: “In the four quarters after fees were introduced, success rates were broadly similar at 9%, 9%, 5% and 13%.”

And Mr Madders wasn’t alone. Later in the debate, former Thompsons lawyer Jo Stevens noted that there is no evidence for ministerial assertions that fees are simply deterring ET claims by “people trying to make a fast buck” because “the success rate has stayed at the level it was at before the introduction of fees.”

Except it hasn’t. As set out ad nauseam on this blog, the success rate – however one measures it, and there are two ways of doing so – has fallen significantly in the four most recent quarters. I don’t recognise the four quarterly figures cited by Mr Madders, but if he really means the first four quarters after July 2013, then he is looking at the wrong quarters, for the simple reason that most of the claims decided in those four quarters were made before the introduction of fees. On average, it takes the system some nine months to determine a claim, so we can’t expect to see any noticeable impact of fees in the outcome figures – upwards or downwards – until about the middle of 2014. And, as the following chart shows, that is indeed when we see a sharp downwards change in the overall success rate.

Outcomes 2010 on

To be fair to Mr Madders and Ms Stevens, they are not alone in getting this wrong: Citizens Advice – which appears to have briefed the MPs – is guilty of the very same oversight. But then Citizens Advice hasn’t had an employment policy officer since 2013. These facts may or may not be related.

Anyway, I’m not going to repeat myself here, especially as the next set of quarterly figures will be published next week, and I will update my analysis of the data on outcomes then. But perhaps Mr Madders and Ms Stevens could spend five minutes reading the final section of this blog.

So, back to the real villain of the piece, the Parliamentary Under-Secretary of State for Injustice, Shailesh Vara. Luckily for Aviva, I had got off their bus before I got to Mr Vara’s contribution to the debate, otherwise I may have done it serious damage with my forehead. As noted previously on this blog, Mr Vara is not one of the Government’s most high-profile ministers. Apart from anything else, he’s one of the diminishing minority of MPs who don’t have a Twitter account, which begs the question: how on earth does he fill his working day?

Whatever Mr Vara does get up to in his Ministry office, it doesn’t appear to include reading the ET fees review report that was completed by Ministry officials and dumped on Mr Vara’s desk at least two months ago. Throughout his contribution to Tuesday’s debate, Mr Vara gave the impression that the review – belatedly launched in June – is still keeping his officials busy looking for ways to back up his evidence-free claim that “it is too simplistic to say that the fees [have been] responsible for the drop [in claim numbers].”

Yet, no sooner had I finished reading the Hansard, and recovered from the shock of learning that “criticism [of the fees] has tended to focus on selected statistics, taken in isolation and out of context”, that I came across the minutes of the 7 October meeting of the ET National User Group. And, according to Ministry official Bill Dowse, as recorded in the minutes, the review report was by then complete and “with the relevant minister.” Which is Shailesh Vara.

Screen Shot 2015-12-02 at 21.24.10

So, come on Mr Vara, don’t tell us what the review report might say. Tell us what it does say. We’ve been waiting long enough. Or are you waiting for the Justice select committee of MPs to give you cover?