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October 14, 2015

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Everything you need to know about the impact of ET fees, but are too afraid to ask

Since October 2013, when the UNISON legal team forced a reluctant Ministry of Injustice to cough up astonishing figures for the number of ET claims made in the previous two months, much has been written and said – not least by yours truly – about the impact of the ET fees regime introduced on 29 July that year. Most of this comment has focused on the sudden, substantial and sustained fall in the number of claims/cases, evident from the Ministry’s quarterly tribunal statistics, but over the last year or so attention has also been given to the seemingly related impact on claim outcomes. In short, it is now increasingly clear not only that the fees have deterred a very large number of potential claims/cases, but also that, on average, those claims ‘lost’ to fees were of greater merit than the claims that have not been deterred by the fees since July 2013. Yet ministers continue to assert, without evidence, that only ‘vexatious’ or “questionable” claims have been deterred by the fees.

In this post, I try to summarise – using some simple charts – what I see as the most important data for assessing the impact of fees on workers’ access to justice. And, in doing so, I will expand on my submission to the current inquiry into court and tribunal fees by the Justice select committee of MPs.

I strongly recommend that you read this post in conjunction with the excellent House of Commons library briefing paper, written by the excellent Doug Pyper and Feargal McGuinness, and published last month. And you might also want to read the submissions to the Justice committee’s inquiry from the Fawcett Society, the Law Society, Maternity Action, the President & Regional Employment Judges (England & Wales), the TUC, the Equality & Human Rights Commission (EHRC), and Working Families. The submission by Working Families includes this case study of what justice secretary Michael Gove would call ‘rough justice’:

Camilla, pregnant and until very recently working 30 hours per week as a hotel cleaner on a zero-hours contract, contacted the Working Families legal helpline in 2015 after being summarily dismissed for taking time off work due to a pregnancy-related illness. The helpline team considered Camilla to have a strong claim for unlawful pregnancy-related dismissal, but she was unwilling to risk up to £1,200 of her savings on issuing and pursuing a tribunal claim. Not without difficulty, Camilla had managed to save just over £3,000 to cover the extra expense she knew would come with having a baby – not least because she would receive only the statutory rate of maternity pay (just 60% of the National Minimum Wage) while on maternity leave. And those savings meant that Camilla would not be eligible for any remission of the tribunal fees.

The impact of fees on ET claim/case numbers

To fully understand the impact of fees on access to justice, it is important to understand that there are two different types of ET case: (a) single claims/cases brought by individual workers; and (b) multiple claimant cases involving tens, hundreds or even thousands of workers, each with an identical (or very similar) claim against the same employer. For example, in 2012-13 – the last full year before fees – there were 54,704 single claims/cases, and 6,104 multiple claimant cases involving a total 136,837 claimants, brought against an overall total of 60,808 employers (give or take some single claims brought against the same employer).

Most press and media reports about ET claim/case numbers misleadingly cite the grand total number of claimants (i.e. 54,704 + 136,837 = 191,541 in 2012-13), but that figure gives a grossly inflated impression of the ET system’s workload as, in most multiple claimant cases, the system will only need to determine one or a handful of lead claims. It is far better to focus on either the total number of cases (i.e. 60,808 in 2012-13) or, better still, the number of single claims/cases.

Not only is this the most meaningful measure of the ET system’s varying workload – and, indeed, the measure now favoured by the Ministry of Justice – but, as the vast majority of multiple claimant cases in recent years have been equal pay claims brought against local authorities and NHS trusts, it is also the most relevant measure when considering the impact of ET claim/case numbers on private sector employers. In that context, it is also worth bearing in mind that approximately one-third of all single claims/cases are also brought against public or voluntary sector employers.

In fact, and as the following chart shows, since July 2013 there has been a substantial and sustained fall both in the total number of new cases, and in the number of new single claims/cases. (The unusually high number of claims/cases in July 2013 was undoubtedly due to some claims being submitted earlier than they would otherwise have been, in order to beat the introduction of fees on 29 July).

Monthly

Much the same pattern – of claim/case numbers remaining steady or declining no more than marginally between January 2012 and June 2013, then plummeting from August 2013 onwards – can be seen if we look at some of the major jurisdictions.

UnfairDismissal

DisabilityDisc

RaceDisc

OrientationDisc

Equal pay and sex discrimination are two of the few jurisdictions in which there was an upwards trend in claim numbers, prior to the introduction of fees in July 2013.

EqualPay

SexDisc

While the officially stated objectives for the fees regime do not include ‘deterring potential claimants’, it is (and always was) abundantly clear that this was in fact the principal objective of ministers. For example, in November 2014, the then justice secretary, Chris Grayling, stated that, by introducing fees, the Coalition government was “trying to deal with a situation where it was too easy to go to a tribunal and where employers, often good employers, were easy prey for questionable claims”. And in June 2015, the current justice secretary’s legal counsel, David Barr QC, told the Court of Appeal that the ‘policy problem’ that fees were intended to address was that “there were increasing numbers of [ET] claims and the existing model was unsustainable.”

In fact, as the following chart shows, having flat-lined in the mid-2000s, and then risen to a peak in 2009-10, at the height of the wave of business failures and redundancies that followed the onset of economic recession in late 2008, the number of single claims/cases was already falling when ministers announced their intention to introduce ET fees in November 2011. And, by the time fees came into force in July 2013, the (modest) “historic downward trend” in single claim/case numbers now cited by ministers as an alternative to the introduction of fees as an explanation of the decline in claim/case numbers was already well established. Indeed, by that time, claim/case numbers had fallen back to the pre-recession, record low level of the mid-2000s.

Annual

The number of claims/cases ‘lost’ to fees

As is clear from the above charts, the introduction of fees in late July 2013 had an immediate, substantial and sustained impact on ET claim/case numbers: in August 2013, the number of new claims/cases fell off a cliff, and has not recovered since. In the six months up to 31 March 2014 – i.e. up to immediately prior to the introduction of Acas early conciliation in April 2014 (see below) – new ET cases (single claims/cases + multiple claimant cases) were down 62% on the same period in 2012-13, from 30,095 to 11,508. Unfair dismissal claims were down by 64%, sex discrimination claims by 80%, and equal pay claims by 84%. In the words of Lord Justice Underhill in the Court of Appeal in July 2015:

It is quite clear … that the introduction of [ET] fees has had the effect of deterring a very large number of potential claimants.

Indeed. And that “very large number” is easily quantified, 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 the same rate (or even at all) in recent quarters, and the actual impact of Acas early conciliation appears to have been more modest than intended – the combined impact of any remaining downward trend and the introduction of early conciliation has been an annual rate of decline of just 15.4%. So the following chart sets out two alternative projections (one low, one high) of single claim/case numbers.

Screen Shot 2015-09-10 at 13.10.29

For the ‘low’ estimate (Projection A), I have assumed that claim/case numbers continued to decline at an annual rate of 6.3% over all eight post-fees quarters, and that the introduction of Acas early conciliation caused a further 17% reduction over the last four quarters. And, for the ‘high’ estimate (Projection B), I have assumed that claim/case numbers declined by 3% over the first four quarters, and then by 15.4% over the last four quarters (i.e. the same rate as the actual decline due to the combined impact of Acas early conciliation and any remaining ‘historic downward trend’).

According to these calculations, as of 30 June 2015, the “very large number” of potential single claimants deterred by and so ‘lost’ to fees was somewhere between 47,350 and 52,200, and continues to rise by some 5-6,000 every quarter. Furthermore, based on historic (i.e. pre-July 2013) case outcome trends, about 80% of those individuals – four out of every five – would have obtained a favourable judgment or settlement, had fees not been introduced. (Note that these figures do not include any claimants in multiple claimant cases ‘lost’ to fees. The number of such MCCs has also declined since mid-2013, but that decline may well be due to factors other than the fees).

How many of the claims/cases ‘lost’ to fees were meritorious

As it is pretty much indisputable that – after allowing for the “historic downward trend” in claim/case numbers and the introduction, almost a year after fees, of Acas early conciliation – some 47-52,000 single claims/cases have been ‘lost’ to fees (as of 30 June 2015), the key outstanding question is: how many of those ‘lost’ claims/cases are likely to have been meritorious?

There is of course no way of knowing for sure. Because – as noted recently by the Department for Business, Innovation & Skills – “only an employment tribunal can determine whether unlawful discrimination or unfair dismissal has occurred.” And, by definition, none of the 47-52,000 single claims/cases ‘lost’ to fees will ever go before a tribunal. (It is worth noting that this was a key factor in the failure of UNISON’s two applications for judicial review – the courts said they needed to see individual cases of ‘justice being denied by the fees’, but by definition cases in which the claimant has been deterred by fees yet a tribunal has found their claim to be meritorious simply don’t – and can’t – exist).

However, in July this year, when giving oral evidence to the Justice committee of MPs on the work of his Ministry, justice secretary Michael Gove appeared to suggest that none of these 47-52,000 single claims/cases ‘lost’ to fees were meritorious, stating:

“There is no evidence yet that the bar being set at a high level has meant that meritorious claims by people who feel they’ve been discriminated against aren’t being heard.”

Yet it simply defies logic to think that the impact of ET fees could have been so precisely calibrated by the Ministry in 2012 that some 47-52,000 unmeritorious claims/cases have been deterred by fees in just two years, without even one potential claimant with a meritorious case being so deterred. Moreover, the available evidence on claim/case outcomes flatly contradicts the justice secretary’s assertion that none of the 47-52,000 single claims/cases ‘lost’ to fees were meritorious.

Were it the case that all (or even just most) of the 47-52,000 single claims/cases ‘lost’ to fees were without merit, then we could expect the overall success rate of claims to have risen substantially. And, as the average ‘age’ of concluded cases is about nine months, this effect would have become clearly evident in the official outcome statistics from at least the first quarter of 2014/15 onwards, if not earlier.

Yet, as the following chart shows, far from rising, the overall success rate has fallen in each of the last five quarters, from 79% in 2013/14, to just 62% in the last quarter of 2014/15. In the first quarter of 2015/16 (April to June 2015), the figures for which were published last month, the overall success rate did leap to 75%. However, this figure is substantially inflated by unusually high proportions of (i) equal pay claims being conciliated by Acas or withdrawn (80%, compared to 40% in the same quarter in 2014/15); and (ii) unfair dismissal claims being conciliated by Acas (69%, compared to 32% in the same quarter in 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 the first quarter of 2015/16 falls to 62% – the same as in the previous quarter.

Outcomes 2010 on

Now, it can be argued that the ‘overall success rate’ shown above is too broad a measure of ‘success’. And it is true that, while the great majority of withdrawn claims are withdrawn as a result of a settlement of the claim, this is not true of all cases. So the following chart shows more narrow definitions of both ‘success’ and ‘failure’, excluding claims conciliated by Acas or withdrawn. And, again, we can see that, from the first quarter of 2014-15, both the ‘success’ rate and the ‘failure’ rate have moved in the opposite direction to what could be expected, were all or even just most of the claims ‘lost’ to fees of little or no merit.

NarrowOutcomes

As with the more broadly-defined ‘overall success rate’, the figure for ‘unsuccessful’ claims disposed of in quarter 1 of 2015-16 is distorted by the unusually high rate of equal pay and unfair dismissal claims conciliated by Acas or withdrawn, so the orange line excludes these two jurisdictions.

Such analysis tends to confirm the view of experienced employment law practitioners that, by and large, it is the ‘high merit but low value’ claims/cases by relatively low-income workers that have been deterred by fees. Yet, in the words of one (respondent) lawyer, “the fees regime really isn’t preventing [speculative] claims with little merit” by high earners, who can “easily afford” the issue fee of £250 “in the hope of making a return on this investment.”

Other considerations

In addition to citing the “historic downward trend” in case numbers and introduction of Acas early conciliation as factors that might explain at least some of the dramatic fall in ET case numbers since July 2013, ministers have repeatedly suggested that some potential ET claimants have simply decided to issue the claim in the County Court, where issue and hearing fees are lower, instead of in the ET.

It is certainly possible that some single claims/cases have been displaced to the County Court. However, all but a few types of claim can only be brought in the tribunal and – while there is some anecdotal evidence of large multiple claimant cases having been brought in the civil courts instead of the tribunal – I am not aware of any actual evidence of such displacement of single claims/cases. Accordingly, there is no good reason to think that such displacement accounts for more than a very small proportion of the 47-52,000 single claims/cases ‘lost’ to fees since July 2013.

Ministers have also stated – repeatedly – that access to justice has been preserved by the existence of the fee remission scheme. A great deal has been said and written about the adequacy or otherwise of that fee remission scheme, but here I simply note that the theoretical availability of full or partial fee remission to claimants on a very low income – and with less than £3,000 of household savings – has patently not protected access to justice for the 47-52,000 individual claimants ‘lost’ to fees since July 2013. More particularly, it has not protected access to justice for the 80% (i.e. 38-42,000) of those men and women who – based on historic case outcome trends – we can reasonably expect to have obtained a favourable judgment or settlement, had fees not been introduced.

Conclusion

Even after allowing for a pre-existing (but modest) downward trend in claim/case numbers, and for the (intended) impact of the introduction of Acas early conciliation in early 2014, the introduction of prohibitively high claimant fees in July 2013 has deterred some 47-52,000 single claims/cases in just two years. All the available evidence – including individual case examples, the experience-based views of a large number of employment law practitioners, and the official statistics on claim outcomes cited above – strongly counters the Government’s apparent position that none of those 47-52,000 single claims/cases were meritorious. And, prior to the introduction of fees, no credible commentator ever suggested that two-thirds of all such claims/cases were “vexatious”, “bogus” or otherwise without merit.

Apart from the obvious detriment to the 47-52,000 individuals in question, this amounts to a significant diminution of the ‘deterrence’ value of the ET system, with an associated risk of increased incidence of unlawful employment practice by rogue and dinosaur employers. That is not in the long-term interest of law-abiding employers, who quite rightly expect a level-playing field on which to compete with business rivals.

Yet this avoidable damage to access to justice and the ‘deterrence’ value of the ET system has brought negligible financial benefit to the government. In 2014-15, net income from ET fees (after both remission and annual administrative costs of some £1.3m) was just £4.3m – less than half the £10m that, in 2012, the Ministry said it expected fees to generate each year. (There have of course been more substantial operational cost savings due to the two-thirds fall in case numbers, but such savings were never an officially stated objective for the fees).

In short, only an idiot would deny that the fees regime needs to be reformed. What that reform should look like, I will explore in a future post.

 

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October 7, 2015

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Discrimination

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Is it a bird? Is it a plane? No, it’s … Equality Dave!

As you may have heard, there have been sightings of a new superhero. In Manchester, of all places. And, as luck would have it, he chose to reveal himself to humanity in a conference hall packed full of Conservative Party delegates, and the massed ranks of political journalism’s finest. This is what he had to say:

For too many people, even a good education isn’t enough. There are other barriers that stand in their way. Picture this. You’ve graduated with a good degree. You send out your CV far and wide. But you get rejection after rejection. What’s wrong? It’s not the qualifications or the previous experience. It’s just two words at the top: first name, surname.

Do you know that in our country today: even if they have exactly the same qualifications, people with white-sounding names are nearly twice as likely to get call backs for jobs than people with ethnic-sounding names? This is a true story. One young black girl had to change her name to Elizabeth before she got any calls to interviews. That, in 21st century Britain, is disgraceful. We can talk all we want about opportunity, but it’s meaningless unless people are really judged equally.

It really is meaningless, really. But he did at least get a Blondie song title in there (10 points). And there was more:

Opportunity doesn’t mean much to a gay person rejected for a job because of the person they love. It doesn’t mean much to a disabled person prevented from doing what they’re good at because of who they are. I’m a dad of two daughters – opportunity won’t mean anything to them if they grow up in a country where they get paid less because of their gender rather than how good they are at their work. The point is this: you can’t have true opportunity without real equality. And I want our party to get this right.

Yes us, the party of the fair chance; the party of the equal shot. The party that doesn’t care where you come from, but only where you’re going. Us, the Conservatives. I want us to end discrimination and finish the fight for real equality in our country today.

Woo hoo! End discrimination and finish the fight for real equality! Today! Well, maybe not today, but soon. Very soon! Possibly even before the sun explodes and devours our planet. All hail Equality Dave, not just an equality superhero but the “new leader of the British left”, according to Dan Hodges of the equality-mad Daily Torygraph.

But … hang on. Where was Equality Dave when we needed him? Where was he, for example, when the government was introducing upfront fees of up to £1,200 to bring a tribunal claim for disability discrimination, or for sexual orientation discrimination? Fees that led to a sudden, substantial and sustained fall of as much as 80 per cent in the number of tribunal claims for disability, race, sex or other discrimination.

SexDisc

DisabilityDisc

Where was Equality Dave when the government abolished the ‘questionnaire procedure’ in discrimination claims – a procedure that facilitated the revealing of crucial information held by the employer, but not otherwise available to the claimant? Where was Equality Dave when the near abolition of civil legal aid and other funding cuts caused the closure of one in six law centres, and the loss of some 300 specialist CAB advisers? Where was Equality Dave when the Equality & Human Rights Commission was stripped of its duty to promote a society with equal opportunity for all, and had its government funding cut by more than half?

And where was Equality Dave in July, when that enfeebled Equality & Human Rights Commission published the findings of its 18-month, £1 million research study, showing that 54,000 new and expectant mothers are forced out of work each year by rogue and dinosaur employers? Did it not make him angry that, when his two daughters grow up and have their own children, there is a one in four chance that one of them will suffer such unlawful discrimination?

Well, if it did make him angry, Equality Dave kept his anger to himself. Because Equality Dave was nowhere to be seen, then. Maybe he was still flying around, above the clouds, out of humanity’s view. Biding his time. Or something.

But at least now he’s here, and he’s going to end discrimination today! Well, soon. Soonish. Somehow.

Postscript: And what’s this? Equality Dave has barely had time to dust off his superhero outfit before his Party’s MEPs – that is, the MEPs of the party of “the fair chance and the equal shot” – have voted against an EU resolution aimed at reducing the gender pay gap. Equality Dave, sort out those MEPs!

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September 24, 2015

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NMW enforcement: David Cameron ramps up the rhetoric (but not much else)

Late last month, prime minister David Cameron used an article in the Times – Parliament is just so yesterday, dahling – to announce that he is putting enforcement of the so-called national living wage (or increased national minimum wage rate for workers over the age of 25, if you prefer) from next April at the heart of his ‘One Nation’ agenda. According to the Guardian – for ideological as well as financial reasons, I am physically unable to read the Times – the prime minister wrote that the national living wage will only work if it is “properly enforced”. And, to that end, “a new labour market enforcement director will be appointed to ensure that firms comply” with the new rate of £7.20 an hour for the over 25s.

Somewhat surprisingly, none of the crack political correspondents reporting the prime ministerial ‘announcement’ spotted that this represents something of a policy climbdown by Cameron. As recently as May this year, he and other ministers were talking of creating “a new labour market enforcement agency” to “crack down on the worst cases of labour market exploitation”, including non-payment of the national minimum wage. Now, that “new agency” has shrunk to just one extra, director-level official. Woo hoo.

On the plus side, Cameron reportedly said his Government will “significantly increase” the budget for enforcement of the national minimum wage, which has already seen welcome increases under the Coalition, from a miserly £8.3m in 2013/14, to £9.2m in 2014/15, and £13.2m in 2015/16. At a time when departmental budgets are being slashed, such increases are not to be sniffed at. Unfortunately, the prime minister gave no indication of the size of the further “significant increase” he has in mind.

Furthermore, the rate at which financial penalties for non-compliance are calculated will be increased from 100% of the underpayment, to 200% (though the current maximum penalty of £20,000 per underpaid worker will remain). And there will be a new team in HMRC to “take forward criminal prosecutions of those who deliberately don’t comply” – in recent years, such (relatively expensive) prosecutions have been even rarer than they were under the last Labour government.

To “unscrupulous employers who think they can get Labour on the cheap”, wrote the prime minister, “the message is clear: underpay your staff, and you will pay the price.”

So it’s surprising that, since the general election in May, ministers have ‘named & shamed’ just one tranche of 75 unscrupulous employers found by HMRC to have breached the minimum wage. For some 50-60 such employers become eligible for ‘naming & shaming’ each month and, as recently confirmed by BIS in answer to a parliamentary question by Jo Stevens MP, the failure to ‘name & shame’ more than 75 since the last tranche of 48 in March means there is now a growing ‘backlog’ of more than 500 unscrupulous employers that BIS has yet to ‘name & shame’. Will it ever do so? We should be told.

Indeed, in late July, BIS announced an effective amnesty from both financial penalties and ‘naming & shaming’ for those NMW-breaching employers that self-report to HMRC. So much for ‘paying the price’ for underpaying your staff. Understandably perhaps, BIS ministers appear somewhat reluctant to say how many unscrupulous employers they have let off ‘paying the price’ since July.

All in all, the message is not quite as clear as the prime minister would have us believe. Underpay your staff, and you might pay the price. Or you might not.

Looking at the details of the tranche of 75 employers ‘named & shamed’ in July, it’s easy to see why Cameron’s announcement did not include any increase in the maximum penalty per worker, as not one of the 75 had to pay anywhere near £20,000 in penalties. The average total underpayment (and so penalty) was just £2052.86, and the average underpayment per worker just £1247.37. In 37 of the 75 cases, the total underpayment (and so penalty) was less than £1,000, and in all but ten it was less than £5,000. In 46 cases, just one worker was underpaid, and only in five cases were ten or more workers underpaid by the employer. One case involved 57 workers, and another 46 workers, but the underpayment per worker in those cases was just £71.41 and £6.61 respectively.

As with previous tranches of ‘naming & shaming’ then, we’re talking about relative small fry – the local hairdressers, beauty salons, pubs, cafes and second-hand car dealers. Indeed, looking at all 285 unscrupulous employers ‘named & shamed’ to date, it does seem that HMRC sees hairdressers and beauty salons as easy targets for keeping its ‘strike rate’ up. Then again, among the 14 hairdressers and beauty salons in this tranche were five of the ten employers found to owe more than £5,000.

NMWnamed

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September 11, 2015

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The latest quarterly ET stats in three charts

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.

Screen Shot 2015-09-10 at 12.52.25

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.

Screen Shot 2015-09-10 at 13.10.29

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.

Screen Shot 2015-09-11 at 13.45.43

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.

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September 9, 2015

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Tribunals

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Empty justice: the big hole at the heart of the ET system

On Monday, the Law Society published its long-awaited discussion document on reform of the ET system, Making employment tribunals work for all. It’s a considered and thought-provoking document that focusses on the idea, previously floated by former ET President David Latham, of creating a single jurisdiction – an Employment and Equality Court, perhaps – within which “all employment law cases could be heard”.

The document suggests that within this single tribunal or court there could be four levels, to which “cases could be allotted according to their value and complexity, with proportionate rules and procedures applying to the different levels of claims”. Under this model, Levels 1 and 2 would provide “an informal, swifter and therefore less expensive way to resolve disputes that involve simple facts and no new issues of law”, such as claims for unpaid wages. Levels 3 and 4 would be “more formal and legalistic”, with Level 3 operating in a similar way to the current ET system, and Level 4 operating “like a civil court for those cases that are currently heard in the courts”.

It’s hard to disagree with the document’s starting point, namely that “employment-related claims need to be dealt with flexibly, depending on their complexity and the financial stakes. It is not acceptable that individuals should be discouraged from bringing legitimate claims or from opposing them because of the cost or complexity associated with the process”. And I’ve long been an advocate of using a document-based and – where appropriate – inquisitorial decision-making process to determine the most straightforward (and usually low-value) claims quickly and at low cost. So I’m attracted to the idea that the document’s proposed Levels 1 and 2 might “ensure that all workers, including those on low pay, could enforce their statutory rights”. As the discussion document notes, “since the introduction of ET fees [in July 2013] many of these types of cases are no longer pursued in the ET, because the claimant could not afford the financial risk”. Indeed.

However, leaving aside the fact that in 2013 the Coalition government went as far as introducing an enabling power to create a “rapid resolution” process for straightforward ET cases (s11 of the ERR Act 2013), but gave up in the face of legalistic objections from employment law practitioners and the TUC, it’s disappointing that the 25-page document devotes just three short sentences to the long-standing and systemic problem of non-payment of ET awards. Because, from a public policy perspective, there would be little point in re-opening the ET system to thousands of low-paid claimants only for a large proportion of them to end up – however “quickly” and at minimal cost to the taxpayer – with an ‘award’ that’s not worth the paper it’s printed on, because the employer will simply fail to pay up.

By coincidence, on Monday the Herald in Scotland reported the case of Christopher Hillis, who has just ‘won’ an ET award of just over £15,000 against Glasgow restaurant Cail Bruich, in relation to his summary dismissal by (abusive) text in September last year, just days after complaining to the restaurant’s joint owner/chef about being paid (well) below the national minimum wage. Cail Bruich is no rogue chippie – it’s twice won an award as Scotland’s best restaurant – but nevertheless Mr Hillis stands to receive not a penny of his award, as the restaurant’s owners have dissolved the company that (technically) employed him, even though the restaurant where he worked continues to trade (heaven knows how – it’s fancy “modern style” dishes look disgusting to me).

crap food

During the later years of the Coalition government, then BIS minister Jo Swinson did try to do something about the systemic non-payment of awards, but by then it was already too late. As I’ve noted previously on this blog, while Ms Swinson deserves “credit for trying to close the stable door, most of the horses have been galloping around the fields since July 2013, and will continue to do so until such time as the fees regime is substantially reformed”.

Which brings us back to the other great problem with the current ET system: fees. Again, on this issue the Law Society’s discussion document is strangely muted, rightly condemning the impact of fees on access to justice but failing to set out any detailed alternative to outright abolition. But that’s for another blog post.

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August 26, 2015

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Rough justice: the intellectual incoherence of Michael Gove

Over the past couple of months, more than one legal commentator has painted the new(ish) secretary of state for justice, Michael Gove, as a bit of a good thing. Admittedly, Attila the Hun would have seemed a breath of fresh air after the not exactly cerebral Chris Grayling. But, since his appointment in May, Gove has won plaudits for swiftly reversing the ludicrous prison book ‘ban’, for highlighting the need to modernise our ridiculously antiquated court procedures, and for hinting he may be something of a penal reformer. Even I have found myself in solidarity with him on decriminalisation of TV licence fee evasion.

So far, however, I have not been tempted to join the emergent Michael Gove Fan Club. Because Gove’s few comments to date on employment tribunal fees, and their devastating impact on workers’ access to justice, suggest his approach to the issue is no more intelligent than that of his predecessor.

In July, when giving oral evidence on the work of his Ministry to the justice select committee of MPs, Gove chose not to deploy any of the Ministry’s lame excuses for the precipitous fall in ET case numbers that followed the introduction of upfront fees of up to £1,200 in July 2013 (“historic downward trend” in case numbers, improving economic conditions, and the introduction – nine months after fees – of ‘mandatory’ Acas early conciliation). However, the supposedly clever justice secretary indicated he will only “revisit” the decision to introduce such prohibitively high fees if “one can point to examples of rough justice – a simple reduction in the numbers of people going to employment tribunals is not in itself proof that there’s been any injustice visited on anyone.” Pressed on this point, Gove responded by saying:

I think that I’d have to see whether or not there was an example of people – or an individual – who’d been dismissed, who hadn’t had appropriate access to justice as a result, and that hard case – or those hard cases – would lead me to think again. But at the moment, what I think is likely to have been the case, is that the bar has been set at a high level, absolutely, but there is no evidence yet that the bar being set at a high level has meant that meritorious claims by people who feel [sic] they’ve been discriminated against aren’t being heard.

Tantalisingly, this suggests that Gove could be persuaded to think again by just one single example of ‘rough justice’, but we all know that’s not the case. The justice secretary would of course say ‘well, that’s only one example, I’m not changing the fees on the basis of just one case. I need to see more.’

But it’s the final part of Gove’s comment that gives away the real intellectual incoherence of his position. For there is in fact no shortage of evidence of people who feel that they’ve been discriminated against (or otherwise unlawfully treated) by an employer, but who say they have been deterred from seeking justice through the tribunal system by the fees. As long ago as July 2014, Citizens Advice published an analysis of 182 potential tribunal claims dealt with by its local offices (formerly known as Citizens Advice Bureaux), showing that 34 potential claimants assessed by their employment law advisers as having a better than even chance of success in the tribunal were put off from pursuing a claim by the fees.

In a recent blog for Working Families, I myself cited the example of ‘Martha’, from the casework of the Working Families legal helpline in (late) 2013. The helpline’s advisers considered ‘Martha’ to have very good grounds for a tribunal claim, but ‘Martha’ was adamant that paying fees of up to £1,200 was not a practicable option for her: “I simply don’t have that sort of money – I’ve just been on maternity leave!” And the report of the helpline’s casework in 2014 includes the following example of apparent ‘rough justice’:

‘Denise’, employed on a zero-hours contract, had had her regular working hours substantially cut since she had taken time off for a pregnancy-related illness. When she had challenged her employer, pointing out that several new staff had been taken on recently, she was told “we need people we can rely on”. The helpline team advised Denise that her treatment amounted to pregnancy discrimination, but Denise said there was no way she could afford to pay the fees of up to £1,200 to pursue a tribunal claim.

Maybe Gove himself has never seen such examples of apparent ‘rough justice’. But we know his Ministry officials and legal counsel have, and we know their response. The 34 Citizens Advice cases they dismissed out of hand, stating – in October 2014, in their detailed grounds of defence of UNISON’s application for judicial review in the High Court – that “the methodology of the study is such that one cannot be confident of its reliability”, and that “whilst the advisers doubtless make a conscientious assessment of the likely prospects of success for their clients, the fact is that, ultimately, the advisers’ assessment is not the most objective one as they have only heard their client’s viewpoint, without the input of the defending employer.” And no doubt they would say the same of the Working Families helpline advisers, and their clients ‘Martha’ and ‘Denise’.

And the fact is, the Ministry mandarins are right. Because, as noted just last month by no less an authority than the Department for Business, Innovation & Skills, “only an employment tribunal can determine whether unlawful discrimination or unfair dismissal has occurred”. And, by definition, the potential but ‘deterred by fees’ claims of ‘Martha’, ‘Denise’, the 34 Citizens Advice clients, and any number of others whose cases have been highlighted over the past two years will never go near an employment tribunal.

So, dozens, hundreds or even thousands of examples of apparent ‘rough justice’ could be put before the justice secretary, but he will always be able to say, in each and every case, ‘but we don’t know that the claim is meritorious, as we haven’t heard the employer’s side of the story’. So he will never have to accept that there has been even one case of genuine ‘rough justice’, and he will never be placed in a position where he has to “think again” about fees. In short, the evidential bar for the Ministry’s post-implementation review of the fees has been set impossibly high, and not even an Olympian case study-gathering effort by critics such as myself (and an awful lot of employment lawyers) would make any difference to the ideology-driven outcome.

And of course, unless Gove is a lot less cerebral than his reputation suggests, he must realise this himself. Which means his response to the justice select committee in July was not just intellectually incoherent. It was grubbily dishonest.

 

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August 20, 2015

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One in 10 #ukemplaw statistics are rubbish. Or is it six in 10?

I’ve written here more than once before about the seemingly growing practice by law firms and others of using eye-catching statistics based on ‘quick and dirty’, dubious or even non-existent research to grab a few headlines for their organisation. All too many journalists – in both mainstream media and the specialist press – seem to lack a critical eye, and to simply regurgitate ostensibly ‘shocking’ statistics without question or analysis. And this week has been a bumper week, with no fewer than four questionable research ‘findings’ on different aspects of the labour market making headlines.

On Wednesday, the BBC, Guardian, Independent, Daily Mail and others reported that 58.8 per cent of UK university graduates are working in jobs that do not require a degree, according to research commissioned by the Chartered Institute of Personnel & Development (CIPD). This startling figure was the lead news story on BBC Radio 4’s flagship Today programme, though it appears no one at the BBC thought to query the spurious precision – are the good people at CIPD quite sure it’s not 58.7 per cent? – or to ask how many UK university graduates had actually been surveyed for the research, and when.

The 29-page CIPD report is wordy and no doubt worthy, and there’s no question as to its academic credentials. But you have to dig quite hard to discover that the 58.8 per cent figure is based on data from just one question in a 2010 European Social Survey, namely: “how many years of education someone would need to be hired for their current job”. To arrive at the 58.8 per cent figure, the CIPD researchers then assume “15–16 years of education as the minimum indicator for a graduate job”. That is, they were probably a graduate. But hey, let’s stick 58.8 per cent in the press release and see how it goes. Bingo!

Later the same day, the Daily Telegraph reported that, according to new research by Citizens Advice, 460,000 workers – one in 10 of the 4.6 million self-employed in the UK labour force – are cheated out of holiday pay, sick leave and pensions because “businesses have wrongly hired them as self-employed”. For its 22-page report, Citizens Advice surveyed a total of 491 of its clients, through two separate surveys (one online), and then determined from their answers that one in 10 “are on ‘bogus’ [self-employment] contracts, and should rightfully be appointed as company staff”. (Based on my 13 years at Citizens Advice, I’m surprised it’s only one in 10, but that’s another matter).

Then, on the basis that the “scale” of these 491 responses “provides a statistically-valid representation of the UK self-employment market (at a 95% confidence level, with a plus or minus 4% margin of error)”, despite the respondents to the online survey having self-selected, the Citizen Advice wonks extrapolate their ‘one in 10’ to the 4.6 million self-employed, do a few quick sums to show how much that is costing HM Treasury in lost National Insurance payments (£314m a year), and – Bob’s your uncle! – they have a headline in the Daily Telegraph and a piece on BBC TV’s supposedly cerebral Newsnight (at 20m15).

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Except that, as any fule kno, and as – somewhat bizarrely – the very next sentence in the report acknowledges, Citizens Advice clients are not representative of the national labour force. On average, they are lower paid, lower skilled, work fewer hours, and – crucially – are far more likely to be working for an unscrupulous or ‘rogue’ employer. Furthermore, as already noted above, the online survey collected data from self-selecting respondents (the ‘methodology’ section of the report doesn’t even break down the number of respondents for each of the two surveys). Fortunately, not all journalists are as unquestioning as those at the Telegraph or Newsnight, so (for example) there is no mention of Citizens Advice’s ‘bogus’ 460,000 figure in the FT’s coverage of the report.

Come today, and the Independent reports that “zero-hours contracts make up one in four offers to [the] jobless”, according to research by recruitment website Glassdoor UK. However, a quick glance at Glassdoor’s own press release reveals that the ‘research’ says no such thing. According to that press release, 23 per cent of the 1,001 “unemployed people” surveyed online by market researchers Opinion Matters for Glassdoor in May reported having been “offered a zero-hours contract”. Which begs the obvious question: when, and how many times, were they offered such a contract?

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The press release doesn’t say, and there is no link to any actual report that might explain the research methodology, so I contacted Glassdoor. They replied with a generic statement from Opinion Matters on how they ‘recruit’ such respondents: essentially, respondents are remunerated for being part of a panel that completes any number of surveys emailed to them by Opinion Matters. So we have no way of knowing whether, and if so how, the 1,001 respondents are representative of ‘unemployed people’, even if we can agree on a definition of ‘unemployed’ (e.g. unemployed and seeking work).

Glassdoor also sent me a spreadsheet containing the survey data. This shows that the question asked was simply: “Have you ever [sic] been offered a zero-hours contract”. So, the ‘finding’ that 77 per of the 1,001 respondents have never been offered a zero-hours contract – despite 299 (one in three) having been ‘unemployed’ for longer than three years, and 38 for more than a decade – tells us nothing at all about the proportion of job offers made to ‘the jobless’ in 2015 that are zero-hours contracts.

But it is the middle of the Silly Season. Which perhaps explains why leading law firm Slater & Gordon thought it a good idea to press release its new research with a claim that “almost six in 10 people have witnessed or suffered bullying in the workplace”. Again, there is no link to any actual ‘report’ that might explain the research methodology – despite the press release explicitly referring to “the report” – so I contacted Slater & Gordon to ask for a copy. They told me that the research report exits, but cannot be shared “externally at this stage as some of the details are commercially sensitive”, and referred me to the generic methodology of market researchers Censuswide, who conducted the survey of 2,000 of their 69,000 (remunerated) panel members for Slater & Gordon. And, subsequently, Censuswide told me:

We used an online quantitative methodology to achieve the overall 2,000 sample base of UK workers. In terms of this sample being robust enough to represent the UK workforce, based on the latest employment data from the ONS, there is a total of 31 million workers across the UK. With this in mind, a sample size of 2,000 is considered to be robust and representative (working to a low margin of error of 2.2% and a confidence level of 95%).

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In short, Citizens Advice, Opinion Matters and Censuswide all appear to have worked on the highly questionable assumption that sample size alone is sufficient to ensure that their survey findings are representative of – so can be extrapolated to – the whole labour force. Which perhaps goes some way to explaining why the pollsters got it so wrong in May. For we know that, even if Citizens Advice surveyed all 30,000 of the self-employed people it advises through its “local offices” each year – Citizens Advice Bureaux seem to be a thing of the past, thanks to a recent brand makeover – the findings could still not be extrapolated to the national labour force. And how do we know that there isn’t a correlation between becoming a remunerated Censuswide panel member and having been bullied at work in the past, or between being ‘unemployed’ and becoming a remunerated Opinion Matters panel member?

Which is not to say that there are such correlations. We don’t know one way or the other. But if researchers don’t publish and explain the methodology used for their ‘research’, they must expect at least some people to question their headline-grabbing findings. And, perhaps more importantly, to question what they have added to the debate on labour market issues and appropriate policy responses.

[Postscript: Yesterday evening, Hetan Shah, executive director of the Royal Statistical Society, got in touch via Twitter to draw my attention to this fabulous “new free online stats course for journalists” that the Society has launched “to reduce just this kind of thing”. Managers at Citizens Advice might want to get their policy researchers to complete the course, too.]

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August 4, 2015

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BIS/EHRC research prompts a pregnant silence in Westminster

On 24 July, as I was busy lying on a beach in Portugal, the Department for Business Innovation & Skills (BIS) and the Equality & Human Rights Commission (ECHR) published the first findings of their joint, £1 million research study into pregnancy and maternity discrimination at work. Though you could be forgiven for not realising, from the associated press and media coverage, that the study was very much a joint enterprise between BIS and the EHRC. For the current crop of ministers exhibited no desire to associate themselves with the outcome of an initiative announced with some fanfare by their Conservative colleague and then minister for women and equalities, Maria Miller, in October 2013.

Mrs Miller – now chair of the newly-formed women and equalities select committee – did at least manage to tweet a call for ministers to “act to stop employers flouting [the] law protecting pregnant women”. And former BIS minister Jo Swinson – seemingly the driving force behind the 2013 decision to commission the research – went further, describing the findings as “sobering” and using a blog for Mumsnet to call for “a zero tolerance approach to [such] discrimination”. But from prime minister David Cameron, current minister for women and equalities Nicky Morgan, justice secretary Michael Gove, and BIS ministers such as Sajid Javid and Nick Boles, there was not a peep.

This is, to put it mildly, disappointing. For the BIS/EHRC research findings are not just sobering, but shocking. Despite the vast majority of the more than 3,000 employers surveyed for the research reporting that the statutory legal rights relating to pregnancy and maternity are reasonable and easy to implement, the 18-month study found that:

  • Unlawful maternity and pregnancy discrimination is now more common in Britain’s workplaces than ever before, with as many as 54,000 pregnant women and new mothers – one in nine – unfairly forced out of their job every year. This is almost twice the figure of 30,000 suggested by the then Equal Opportunities Commission in 2005, and very close to the figure of “up to 60,000” suggested by Maternity Action in its December 2013 report Overdue;
  • Single mothers, and young mothers (under 25), are at particular risk;
  • One in three women feel their needs during pregnancy or as a new mother are not supported willingly by their employer;
  • One in six new mothers suffer a negative impact on their health or stress levels because of poor treatment at work; and
  • Only one in 12 (8%) of those women who raise a concern about their treatment at work obtain legal advice from an external advice provider such as Maternity Action or a CAB.

You’d think ministers first elected (in 2010) on a manifesto promising to make Britain “the most family-friendly country in Europe” and positioning themselves as the ‘true party of workers’ might have something to say about such authoritative research findings.

However, as Ros Bragg of Maternity Action noted in the Guardian, they might then have to explain not only why they’ve done nothing to address what amounts to a significant deterioration in the position of pregnant women and new mothers in the workplace over the past decade, but also why they have acted to make it far more difficult for women to challenge their employer and obtain justice. In particular, they might have to explain why, since July 2013, women wishing to pursue a tribunal claim for pregnancy, maternity or other discrimination have had to pay up to £1,200 in upfront tribunal fees.

Pursuing a tribunal claim has always been a daunting prospect, especially for pregnant women and new mothers, and – as the following chart shows – the number of claims for pregnancy-related detriment or dismissal has never been huge. But the number of such claims has fallen by 40%, from an average of 126 per month before fees, to just 75 per month in 2014.

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In other words, in 2014 just 893 (1.6%) of the 54,000 women who, according to the meticulous BIS/EHRC research, were forced out of work on account of their pregnancy or maternity leave issued a tribunal claim against their former employer. Not so much a ‘zero tolerance approach to discrimination’ then, as a charter for dinosaur and rogue employers. Yet, as noted by Sally Brett of the TUC, this is hardly surprising when one

“pauses to consider what a new mother is dealing with: sleepless nights, a newborn baby demanding round-the-clock attention, a significantly reduced income, and increased expense. No wonder so many women find it so hard to find the time or energy to research the law, seek advice and lodge a well drafted legal claim within three months of the discrimination they have suffered. No wonder that so few feel ready to stump up £1,200 to get a case lodged and heard at tribunal.”

That government ministers should have nothing at all to say about this is troubling enough. But Cameron, Morgan, Gove and Javid were hardly put to shame by their ministerial shadows. Labour’s press office did put out a brief statement by shadow equalities minister Gloria De Piero – “It’s time to look at how we can strengthen the law and scrap tribunal fees so cost is never a barrier to justice” – but otherwise the silence from Labour MPs, including the four leadership candidates, was almost as deafening as that from government ministers. As far as I can tell, neither Yvette Cooper nor Liz Kendall considered the issue worthy of their comment, despite their (laudable) record of highlighting such discrimination, and the pink bus stayed locked away in its garage.

Such reticence from the party that Liz Kendall describes – in a campaigning piece issued just five days after the launch of the BIS/EHRC research – as “the greatest champion of equality and opportunity that our country has ever known” is mystifying and, it must be said, deeply depressing. It may well be time, in the words of Maternity Action’s Ros Bragg, for ministers to “move beyond family-friendly rhetoric to delivering practical solutions to this persistent and growing problem”, but shadow ministers have yet to deliver any credible rhetoric. It’s not as if the issue is that complex – tens of thousands of women are being forced out of work simply for having babies. And if the Labour opposition really has nothing to say about that, then it’s no surprise that government ministers feel able to sit on their hands too.

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July 27, 2015

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The secret of Acas’s success

Just weeks after erroneously informing us that employment tribunal case numbers are “bouncing back following the slump after the introduction of fees”, on Friday the Law Society’s Gazette trumpeted that Acas early conciliation has “cut tribunal cases in half” since its implementation in April 2014.

To be fair, the (very short) news report is a lot more accurate than its headline – so much so that you have to wonder which narcotic substance the sub-editor was enjoying at the time he or she came up with the headline. And perhaps it really doesn’t really matter whether a sub-editor at the Gazette knows the difference between ‘up’ and ‘down’. But if the self-proclaimed “publication of record to solicitors in England and Wales” can get so confused about basic legal matters, we can’t really blame less specialist news outlets (and politicians) for soaking up and repeating such canards. So it’s worth setting out in detail just how wrong that headline is.

The relevant official statistics are freely available. And – especially if we put them into a chart – even Gazette journalists, with their uncritical eye, should be able to see immediately that the implementation of Acas early conciliation in April 2014 has not reduced the number of ET cases by anything like 50%.

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In January and February 2014 – by which time ET case numbers had pretty much stabilised following the introduction of fees in July 2013 – the average monthly number of new ET cases (single claims/cases + multiple claimant cases) was 1,922. And, over the three months up to March 2015 – the most recent months for which the figures are available – it was 1,626. That’s a reduction of 15.4% – which is slightly less than the 17% reduction predicted in the then government’s final regulatory impact assessment in February 2014, and a lot less than the 50% reduction now trumpeted by the Gazette.

Furthermore, no one can say with certainty that all of that 15.4% reduction can be credited to the implementation of ‘mandatory’ Acas early conciliation. As noted previously on this blog, some ministers seem to believe there has been a significant ‘downward trend’ in ET claim numbers in recent years, as the economy has slowly recovered from the near-fatal shock administered by bankers in 2008. And, if they’re right, some of that 15.4% reduction would have happened anyway.

So, how do we square this modest reduction of 15.4% with the fact – more accurately reported by Gazette journalist Chloe Smith in the body of her news report – that Acas is “preventing” about half of the cases notified to it under the early conciliation scheme from progressing to a tribunal claim? Well, one theory, previously set out on this blog, is that Acas is now hoovering up (and conciliating) lots of workplace disputes that would never have become a tribunal claim in any case.

Which, it must be emphasised, is arguably a very good thing. It has always been clear that the overall number of workplace disputes (or potential tribunal cases) far exceeds the actual number of tribunal cases. And, even before the introduction of hefty, upfront fees, many potential tribunal claimants were deterred by the likely time, stress and cost involved – in March 2014, the then minister for employment relations, Jenny Willott, wrote: “it costs on average £1,800 to present a claim at tribunal”. And now it would seem Acas is helping to resolve some of those ‘non-tribunal’ disputes. Bully for Acas, I say.

But the evident ‘success’ of Acas in hoovering up and resolving those ‘extra’ disputes is a separate matter to the (evidently modest) impact of early conciliation on the actual number of tribunal cases. And, of all people, journalists and sub-editors at the Law Society’s Gazette really ought to understand that.

 

 

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July 17, 2015

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Workers of the world unite! You have nothing to lose but your promiscuity.

On Wednesday, justice secretary Michael Gove gave oral evidence to the Justice select committee of MPs on the work of his department. And, thanks to two Labour members of the committee – Nick Thomas-Symonds and Richard Burgon – we learnt a little bit about the minister’s views on the impact of employment tribunal fees. If you have the time and the inclination, you can watch the whole thing on parliament TV, and there will be a full transcript in due course. However, as it may be a few days before that official transcript appears, here is my unofficial one.

In response to a question by Conservative member Alex Chalk about the “evidential underpinning” for the recent hike in civil court fees, Gove had just stated that the government had sought to ensure that the “fees better reflect the cost of the justice system”, but “we can’t know until fees are in place what the real impact will be”. Amen to that.

Nick Thomas-Symonds: You just said, Secretary of State, in the answer to Alex, that fees better reflecting the cost of justice is the general principle, but I’m sure you’ll appreciate Secretary of State that with employment tribunals, for example, they are in a cost-neutral environment, so surely the argument can’t apply, can it, to the enormous hike in employment tribunal fees that happened? Is that something that you intend to revisit, because there clearly is an access to justice issue if people who have lost their jobs are clearly not going to be in a position to fork out the kind of fees that they now have to?

Michael Gove: Well, there are two things I’d say. First, what we’ve got to try to do is make sure that, as much as possible, the justice system overall recovers costs. So it will be the case that there will be costs in one part of the justice system which will cross-subsidise other parts as well. That’s the first thing.

The second thing is that, with respect to employment tribunals, we are committed to reviewing the impact o those changes. My predecessor entered into a commitment to review them, I think it was the former business secretary, the former member for Twickenham, who was concerned that that review should take place before the election. We are carrying out that review, and we will share with this committee and with the Commons more widely the results of that review.

And you are right, that it’s important with employment tribunals that we balance the rights of individuals who may have been dismissed, also with the need to ensure, as I think will have been the case in the past, that we don’t have – um, what’s the word? – too promiscuous use of the employment tribunals by individuals who have been fairly dismissed.

Nick Thomas-Symonds: If the evidence shows, Secretary of State, that there has been a severe and substantial reduction in the number of cases going through employment tribunals, would that be (a) a cause of concern; and (b) something that might lead you to rethink the level of fees and reduce them?

Michael Gove: Not intrinsically. Without wanting to pre-empt the review – because, by definition, there will be issues raised by the officials conducting that review that I might not be able to anticipate …

Nick Thomas-Symonds: I appreciate that.

Michael Gove: But, my view would be it’s only if one can point to examples of rough justice that one should seek to revisit it – a simple reduction in the numbers of people going to employment tribunals is not in itself proof that there’s been any injustice visited on anyone.

Nick Thomas-Symonds: One further point. The point I made was not simply whether there’s been a reduction, but a very substantial reduction. Some figures I have seen show, for example, a 79% reduction, something like that. Now, whilst in itself a reduction does not point to it, that level surely does and should be a matter of concern to you, Secretary of State.

Michael Gove: It’s certainly a cause to want to review things, yes, but it need not necessarily be the case that such a significant reduction has automatically led – automatically led – to people who should have had a particular outcome not enjoying the justice that they deserve.

Richard Burgon: My colleague did mention that there’s been figures of up to a 79% decrease in claims, particularly in relation to discrimination claims, so I’m wondering, do you think – if there’s been a decrease in employment tribunal claims of up to 80% – there has been a similar decrease in employers treating employees badly?

Michael Gove: I think that I’d have to see whether or not there was an example of people – or an individual – who’d been dismissed, who hadn’t had appropriate access to justice as a result, and that hard case – or those hard cases – would lead me to think again. But at the moment, what I think is likely to have been the case, is that the bar has been set at a high level, absolutely, but there is no evidence yet that the bar being set at a high level has meant that meritorious claims by people who feel they’ve been discriminated against aren’t being heard.

Richard Burgon: Secretary of State, it also concerns me not just that those who are seeking to bring a claim might have access to justice denied, but the effect it has on the whole workforce if employers know that the chance of an employment tribunal claim being brought against them is so much lower than it used to be that can effect the way that workers right across the field of employment are treated, including those who wouldn’t dream of bringing a claim even if they are treated badly.

Michael Gove: I absolutely understand your line of thinking. If it’s the case that it appears workers rights are eroded, then that can become a charter for tyrannical bosses to act in an outrageous fashion. But I don’t see any evidence of that. So, while its a perfectly internally coherent theoretical argument, I don’t see evidence that employers are behaving in an outrageous way. And I should say that if one looks at some of the other things that this government has done, from our proposal to increase the minimum wage to a living wage, through to the announcement yesterday by the prime minister of equal pay audits, then actually what this government has done is show that you can safeguard and enhance workers’ rights, but not necessarily in a way that a different political party would have done.

 

We can see the hand of Elias LJ in some of the minister’s comments, and there are several points that I intend to return to in a future post on this blog. In the meantime, please do feel free to express your own views by posting a comment.