When is an ET claim not a claim? (Answer: When it’s part of a case)

For some years now, policy debate around reform of the employment tribunal (ET) system has been befuddled by confusion – some of it inadvertent, some of it wilful and malevolent – about whether the system’s workload should be measured in terms of the number of claims, or the number of cases – which includes the relatively small number of multiple claimant cases consisting of tens, hundreds or even thousands of claims. In 2011 and 2012, the Conservative/Liberal Democrat Coalition grubbily presented its erosion of the legal protection against unfair dismissal and introduction of hefty tribunal fees as necessary responses to ever-rising numbers of ET claims, even though the number of ET cases (mostly comprised of single claims by individual workers) peaked in the last year of Gordon Brown’s Labour government and fell in each of the Coalition’s five years, reaching a near-historic low even before the evisceration from July 2013 onwards due to fees.

With both claim and case numbers having hit rock bottom since the introduction of both fees (in July 2013) and Acas early conciliation (in May 2014), and the Ministry of Justice having switched to regarding case rather than claim numbers as the most meaningful measure of the ET system’s workload, the distinction has become somewhat less significant, and last month I paid little more than cursory attention to the latest set of quarterly ET statistics, covering the period July to September 2015. For the number of cases was remarkably similar to previous quarters. Move along, nothing to see.

But an article in the Guardian earlier this week by the campaigning journalist Frances Ryan – about how, thanks to fees, disabled workers cannot afford to challenge workplace harassment and discrimination – had me scurrying back to add the monthly figures for July, August and September 2015 to these three charts, created when the latest available figures were those for April to June:

disability

sexorientation

race

Clearly, LGBT and ethnic minority workers cannot afford to challenge workplace harassment and discrimination any more than disabled workers. However, when it came to summing these and other monthly figures to add Q2 2015-16 to the following chart, I noticed something my cursory study of the Ministry’s spreadsheets in December had missed. Whereas in most discrimination jurisdictions the claim numbers were little different to those in previous months, as shown above, the number of age discrimination claims shot from 93 in May and 85 in July, to 11,415 in September. With the result that the total number of discrimination claims, not including equal pay claims, rocketed from 875 in May, and 1,047 in July, to 14,020 in September.

AllDisc

From which – especially if you are, say, a super-intelligent but rather slow-reading Parliamentary Under-Secretary of State for justice, or a crack reporter at HR Director, the Solicitor’s Journal or the Law Society’s Gazette – you might conclude that the ET caseload has finally ‘rebounded after its post-July 2013 slump’ as ‘claimants adjust to the fees’.

Except it hasn’t, of course. Claim numbers don’t just leap from a 12-month average of 80, to 11,415 – at least, not in any meaningful way. My first thought was that it must be a data input error (of which there were several in the previous quarter’s set of statistics). But then I looked at the figures for equal pay claims, and saw that they also rocketed, from 359 in May and 529 in July, to 11,471 in September.

Yet, over the same period, the total number of ET cases fell, from 1,555 in May 2015, to 1,453 in August, and 1,433 in September. How does that fit with the stellar increase in age discrimination and equal pay claims in September?

Most people reading this won’t need me to spell it out, but just in case you are junior justice minister Shailesh Vara MP, or Emma Burns of Hugh James Solicitors, or David Barr QC of Temple Garden Chambers, here’s the explanation. In September 2015, when the number of multiple claimant cases was at a record low – just 80, compared to a pre-fees monthly average of 450, and a more recent monthly average of 171 – there were one or two exceptionally large such cases, involving a total of some 11,400 claimants bringing claims for both age discrimination and denial of equal pay. That case (or cases) aside, everything else continued much as before. So, there was no associated stellar increase in the workload of the ET system – which will have to determine only a handful of lead claims from among the some 11,400 claimants in that unusually large case (or cases) – even though the updated charts for age discrimination and equal pay claims now look like this:

age

pay

All of which is a rather long-winded way of saying it’s about bloody time HMCTS started breaking down its figures for jurisdictional claim receipts, so as to distinguish between ‘single claim receipts by jurisdiction’ and ‘claim in a multiple claimant case receipts by jurisdiction’. We have these things called computers these days, which can easily make such distinctions, at minimal cost. We should use them.

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!

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.

Screen Shot 2015-07-30 at 12.52.49

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.

How low can you go? The impact of ET fees on equality groups

With just seven weeks to go until Parliament is dissolved (at the end of March) for the general election campaign proper, and the Ministry of Injustice fully occupied trying to work out the correct burden of proof in criminal trials, it is now safe to assume that the Ministry’s long-promised review of ET fees is not going to happen this side of 7 May.

Having been busy “finalising” the scope and timing of the review as long ago as June 2014, by last month the Ministry was only “considering” these tricky concepts. And, while seemingly powerless Liberal Democrat ministers have since early 2014 used the review as a shield to cower behind whenever the issue of fees has been raised with them in parliament or in public, at a recent Working Families policy conference BIS minister Jo Swinson didn’t even try to do so when the impact of fees on parents’ ability to assert their flexible working rights was raised from the floor by Bronwyn McKenna of UNISON.

However, timing aside, finalising the scope of the review is not something that should have detained even the lowliest Ministry official for very long, as the job was done even before the fees regime came into force in July 2013. As previously noted elsewhere on this blog, a plan for the review was set out in an annex to the Ministry’s final regulatory impact assessment of the fees regime, issued in May 2012:

HMCTS will review ET and EAT fee rates to evaluate the impact of the introduction of a fee in this jurisdiction, and to compare against the behaviour predicted by our economic model. We will seek, wherever practicable, to align any proposals for improvements to the system with future reviews of fee levels. Any changes to fee levels will be made through legislation.

The review will seek to:

  • Ensure that those who use the ET system, and can afford to pay, do pay a fee as a contribution to the cost of administering their claim/appeal;
  • Ensure that the remissions system ensures that only those who can afford to pay a fee do so;
  • Ensure that the fee charging process is simple to understand and to administer;
  • Examine impacts on equality groups; and
  • Verify the amount of fee income raised against the models presented in the Impact Assessment and quantify any operational savings.

The first thing to say here is that “economic model” was a somewhat inflated way to describe the wild guesswork that made up most of the Ministry’s impact assessment. Whatever, since there is no evidence of workers using the ET system without paying a fee (or obtaining full remission), we can tick off the first bullet point. There is some evidence (and the Ministry appears to be sitting on further evidence) that the remissions system is doing very little indeed to protect access to justice, not least because the criteria and process for obtaining fee remission are anything but simple – the application form and guidance notes run to 30 A4 pages. And the Ministry has recently published figures on both fee income (less than predicted) and the associated operational savings (greater than predicted).

As for the “impacts on equality groups”, the substantial fall in the number of discrimination claims since July 2013 is well documented, with the figure for sex discrimination claims most commonly cited by MPs and others. But I thought it might be illuminative to apply the exercise I undertook in my last post – plotting claim numbers in the 12 months up to September 2014 as a percentage of the average over the 12-month period July 2013 to June 2013 – for the main jurisdictions. And this chart is the result.

disabilityratio

Note that, apart from the black line, which is all cases (i.e. singles + multiple claimant cases), the figures used here are for jurisdictional claims, with an average of about 2.1 jurisdictional claims per case. And yes, age discrimination claims really did shoot off the scale in March and April 2014, presumably due to one or more large multiple claimant cases (or data entry errors by HMCTS).

So, apart from “urgh what a horrible mess”, what can we say about this chart? I hesitate to say too much, and would be very interested to hear the views of others (post a comment!), but I think it confirms what we already knew: that women have been big losers under the fees regime, with both sex discrimination and equal pay claims depressed markedly more than those in other jurisdictions.

That said, there has been something of a recovery in equal pay claims, and in claims for unauthorised deductions, since the introduction of Acas early conciliation in April 2014. I leave it to my clever long-lost twin, Michael Reed of FRU, to explain what that’s all about.

Is there any comfort to be drawn from this chart by, say, a Parliamentary Under-Secretary of State for Justice? I guess such a person might note that the number of claims in most discrimination jurisdictions other than sex discrimination has been depressed a little less than in some of the other main jurisdictions, such as unfair dismissal and unauthorised deductions. But I really don’t think that’s anything to crow about. The number of claims in those jurisdictions has always been relatively small (and is now very small indeed), and at such a low level of claims we might expect a slightly lower price elasticity of demand in those jurisdictions. We can think of this as the ‘How low can you go’ theorem.

And of course, as shown by this excellent new report from Citizens Advice Scotland, every time a valid claim is not brought due to the cost of fees, an employer gets away with unlawful discrimination. What the chart really confirms is the shallowness of the Coalition government’s stated commitment to tackling the discrimination that remains all too rife in UK workplaces. In a new Government Equalities Office guide to tackling sex discrimination in relation to pay, for example, equalities minister Nicky Morgan states: “I want women to feel able to hold employers to account if they feel they are not being paid the same as their male colleagues.” Yet, as the guide quietly acknowledges, “if your employer still refuses to pay you equally,” then the only way to ‘hold your employer to account’ is to issue and purse an ET claim.

Limit access to that means of holding employers to account with ET fees, and the unequal pay that feeds the gender pay gap will take even longer to eliminate, to the detriment of all.

 

Equal pay audits: the wrong tool in the box?

Once upon a time, a long, long time ago, a newly-elected Prime Minister claimed to have invented a wondrous thing: joined-up government. From now on, the purer-than-pure premier said, ministers and their departments would work together to ensure both that an initiative in one policy area would not have unwanted consequences in another, and that only the best and most effective policy tools were selected and prioritised to tackle any particular policy problem. But the years passed, a number of wars were launched, and Tony Blair gradually lost his enthusiasm for joined-up policy making.

This was unfortunate, as ‘joined-up government’ was undoubtedly one of Blair’s better ideas. For decades if not centuries, far too much government policy has been made in silos, with ministers in one department giving little if any thought to how policy ‘owned’ by other departments (or even just by other ministers in the same department) might be reformed or developed to help them achieve their own policy objectives. And, frankly, much the same can be said of many of the campaigning and lobby groups that seek to influence government policy.

This fundamental flaw in the policy process came to mind in recent weeks, with a set-piece speech on the gender pay gap by Gloria De Piero MP, Labour’s shadow minister for women and equalities, and a survey report on the gender pay gap among senior managers by the Chartered Management Institute and XpertHR, setting off a wave of outraged comment pieces and renewed calls for the introduction of mandatory equal pay audits for large employers (i.e. of the sort promised by Ms De Piero).

In the Guardian, noting that, at the current rate of change, it will take 60 years to close the current gender pay gap of 19.7 per cent, columnist Lauren Laverne posed the question: “we have to wait a hundred years for the 1970 Equal Pay Act to work? Are you on glue?” Meanwhile, over on the paper’s Women in Leadership pages, the first of Harriet Minter’s five proposals “to end the gender pay gap” was: “make reporting on pay data mandatory”. According to Minter, this would “bring an end to the madness” of “women being paid less than men”, and “guarantee a fair and equal wage for all”. And, noting the CMI/XpertHR finding that male company directors take home £21,000 more each year than their female counterparts, the Work Foundation’s Professor Stephen Bevan found it “hard to resist the conclusion that equal pay audits should now become mandatory”.

Hmmm. The problem with that line of argument is that it assumes – or, at least, conveys the message – that (a) the gender pay gap is all about women being paid less than men to do the same job; and (b) this is all due to wicked employers having gender discriminatory rates of pay. Accordingly – or so the argument runs – all you have do to close the gender pay gap is shame all those wicked employers into paying their staff equally by making them conduct and publish equal pay audits.

In reality, it’s a lot more complicated than that. Discriminatory pay by employers is just one of many factors behind the gender pay gap, and is quite possibly one of the least influential, overall (which is no consolation if you are one of the all too many women subject to such discrimination). As Professor Bevan notes, “a range of factors are frequently shown to have strong explanatory power, including occupational segregation (and a lower societal value placed on so-called ‘women’s work’), [and] the impact of part-time working both on pay itself and the life-time accumulation of ‘human capital”, as well as “both direct and indirect discrimination”. In 2012, research commissioned by the Government Equalities Office could find only 13 successful ‘equal pay’ employment tribunal claims against employers other than the NHS and local authorities in the three-year period 2009-11, and only 41 such claims between 2004 and 2011.

Furthermore, most if not all of those calling for mandatory equal pay audits are in fact proposing only that they be mandatory for large employers – that is, those with more than 250 employees. Yet such companies employ less than 10 million (40 per cent) of the national workforce of some 24.3 million. So equal pay audits wouldn’t bring any benefit to 60 per cent of the workforce.

Accordingly, as supportive as I am of gender equality and of tackling sex discrimination in the workplace, it’s never been entirely clear to me how or why mandatory equal pay audits would effectively address such a complex range of factors. Furthermore, even if such pay audits did eliminate gender discriminatory pay rates, a gender pay gap would still remain, due to the influence of other, arguably more powerful factors – not least the significant impact on women’s earnings of taking time out of the labour market to have and care for children.

As FlipChartRick demonstrates this week in a must-read blog post, the gender pay gap is not spread evenly among women of all ages and all pay brackets. Far from it. Citing analysis by David Richter of Octopus HR, FlipChartRick argues that “the full-time pay gap at the median has almost disappeared for those in their twenties, with women earning slightly more than men [on average] in recent years”. And “there has been a significant fall in the gender pay gap for those in their thirties”.

Moreover, while “the pay differential for those in their twenties is fairly narrow, even at the very top level [of pay], the pay gap for those over 40 is significant at all levels of the pay distribution but much higher at the top”. In short, “age and position in the earnings distribution has a significant effect on the gender pay gap. Women over 40 and/or in the upper income bracket earn significantly less”. That is, “the gender pay gap appears just at the point in the age distribution when many women have children” and “children have more of an impact on women’s pay than men’s” because it is women “who take on most of the childcare responsibilities”.

FlipChartRick concludes that introducing mandatory equal pay audits “might yield some interesting information for pay data geeks to pore over, but I doubt that it [would] tell us much that we don’t already know, or even whether it [would] reveal some major employers to be significantly worse than others. It is unlikely that the gender pay gap will disappear until equal proportions of women and men take equal responsibility for childcare”.

Which brings me back to my point about joined-up government policy-making. In recent weeks, as part of her “mission to promote shared parental leave”, a policy reform intended to make the proportions of women and men taking responsibility for childcare more equal, the BIS minister Jo Swinson has given a number of major media interviews – including in the Independent, the Evening Standard, and with Family Networks Scotland.

However, while Ms Swinson used these interviews to make much of “recognising that dads want to have a bigger role in their child’s life from the first days” and boosting parental choice, she signally failed even to mention the gender pay gap and the central role that shared parental leave (and more shared parenting) might play in closing it. And the Minister’s omission is even more surprising when one considers that, in the middle of her media push on shared parental leave, she also launched the Liberal Democrats’ campaign to “deliver equal pay in the workplace”. Which consists entirely of – you guessed it! – “plans to require large companies [i.e. those with over 250 employees] to publish the difference in pay between male and female workers”.

Of course, the nine months before a General Election is not the best time to find joined-up thinking within a government made up of two competing political parties, or even just within each political party. But perhaps after May 2015 both elected politicians and the relevant campaign and lobby groups will pay greater attention to the (rather obvious) link between the gender pay gap and the need for more shared parenting. And then we might just see progress on policies – such as increasing the shockingly low rate of statutory maternity and parental leave pay – that would help close the former while facilitating the latter.

Does the hand that rocks the cradle get the pay?

One of the perils of being an employment lawyer is sometimes you spend time thinking about a conundrum caused by changes to the law before concluding it probably ultimately does not matter. The rights a man might have to any enhanced pay during shared parental leave is probably another one of those situations. If an enhanced maternity pay scheme provides for full or enhanced pay for, say, the first 26 weeks of maternity leave, what rights does a man who takes shared parental leave have to the same benefit when his time off is during that period?

The father could argue he has been directly discriminated against on the basis the mother would have received the enhancement. But I am not so sure. Is the correct comparator in this situation a woman on maternity leave, or a woman on shared parental leave? If a man on shared parental leave cannot compare himself to a woman on maternity leave his direct discrimination claim stops there. It is clear that there is nothing in the Equality Act to prevent a comparison being made between a man on shared parental leave and a woman on maternity leave; as the EAT said in de Belinwe see no conceptual objection to a man bringing a sex discrimination claim by reference to the more favourable treatment of a colleague on account of her being pregnant or on maternity leave. Those are, as the Claimant says, gender-specific criteria, and discrimination by reference to them is, other things being equal, sex discrimination“. It is arguable, however, that the more appropriate comparator is a woman on shared parental leave. But as the ECJ in Roca Alvarez commented, the positions of male and female parents of a young child are comparable with regard to their possible need to reduce their daily working time to look after the child, which lends support to the argument that there is no reason why a woman on maternity leave could not be an appropriate comparator.

Assuming that comparison can be made, section 13(6) of the Equality Act comes in to play. It specifically states where it is a man complaining of discrimination “no account is to be taken of special treatment afforded to a woman in connection with pregnancy or childbirth.“.
The scope of that special treatment is, however, restricted as the EAT in de Belin and the ECJ in Roca Alvarez made clear. Shared parental leave allows either parent to take time off to care for the baby once the two week compulsory maternity period is at an end that suggests a distinction between maternity leave (time off to recover from the physical trauma of childbirth and to breast feed) and parental leave (time off to care for the child); at some point after the birth, maternity leave must be more akin to Roca Alvarez/ Makin parental leave. Arguably therefore the special treatment exception cannot allow an employer to treat women on maternity leave more favourably than, for example, a father who takes time off to be the primary childcarer when his child is 3 months’ old. There may be arguments to be had about the point at which ‘special treatment’ is no longer necessary, but I suspect any judicial attempt to define the exact point as being anything other than the 2 weeks immediately after the birth might be as laughable or as concerning as the old cases on a maternity comparator.

Ultimately, however, the reason all this may end up being legally interesting (if you’re a geek) but largely irrelevant is that presumably the man’s claim succeeds in any event as one of indirect discrimination. If the enhancement is paid to anyone on “maternity leave” (as most policies describe it) this is a provision, criterion or practice for the purposes of Section 19 of the Equality Act with which a man cannot comply. A man is clearly put at a disadvantage as he does not receive the enhanced maternity pay. I do not consider that an employer could sustain a justification for the different treatment for the same reason that the special treatment argument fails; at some point after the birth, maternity leave is actually more akin to Roca Alvarez/ Makin parental leave and there is no reason for treating women on maternity leave more favourably than men on shared parental leave which does not rely on the very gender stereotypes regarding care of children which shared parental leave is intended to work towards eradicating.

Comments and thoughts welcome. I have not seen anything where anyone nails their colours to the mast on the direct/indirect point.  But query whether that’s because it doesn’t matter.

The one in which the Minister says it does not cost £1200 to pursue an ET claim for discrimination

In the House of Commons yesterday, it was looking as if yet another session of oral questions to the Department for Business, Innovation & Skills (BIS) was going to pass without Vince Cable and his ministerial team being pressed on arguably the most damaging element of the Coalition’s erosion of workplace rights: the hefty, upfront employment tribunal (ET) fees introduced last July.

But then up popped Labour backbencher John Cryer with this poser (scroll down to column 438): “The Minister confirmed just a few minutes ago that women who become pregnant can and do face discrimination at work.  Why, then, are the Government going to charge those women £1,200 to go to an industrial tribunal?”

Glossing over the fact that employment tribunals haven’t been called ‘industrial tribunals’ since 1998, the response by Jenny Willott – the Liberal Democrat MP covering as BIS employment relations minister during Jo Swinson’s maternity leave – is worth setting out in full:

 I am disappointed that this figure is being bandied around yet again. It does not cost women more than £1,000 to go to a tribunal.  It costs only £250 to start a claim, and most cases are finalised well before a hearing.  For those who end up going to a hearing, fee remission applies in many cases, and if the women win their case, costs are often awarded against their former employers.  It does not cost what the hon. Gentleman suggests, it is scaremongering by Labour Members, and I am concerned that this will put women off taking cases against their employers when they have been unfairly discriminated against.

Now, it’s true that it costs “only” £250 – the equivalent of a week’s wages if you’re on the national minimum wage, but clearly little more than loose change to a Parliamentary Under-Secretary of State – to start a claim for pregnancy, maternity or any other form of discrimination.  But there’s little point paying to start a claim unless you intend to finish it, and if the respondent employer doesn’t settle your claim that will cost you another £950 – or another four weeks’ wages if you’re on the minimum wage.  And why would the respondent employer settle your claim before seeing whether you are prepared to pay the £950 hearing fee on top of your £250 issue fee?

Then again, according to Ms Willott, that shouldn’t be a problem because “fee remission applies in many cases”.  It does?  I’d like to hear Ms Willott’s definition of ‘many’, because the only figures the Ministry of Justice has been willing to release to date show that 80 per cent of fee remission applications are rejected, and that just four per cent of claimants actually receive any fee remission.  It’s entirely possible that the latter proportion has increased in recent months, but in that case why has the Ministry of Justice repeatedly declined to release more recent figures?

So, not much chance that you’ll get any fee remission then.  But at least “costs are often awarded” against losing employers.  They are?  According to the official ET statistics, in 2011-12 costs were awarded to just 116 (0.005 per cent) of the some 24,000 claimants who won their case in the tribunal (either at a hearing, or through a default judgment).  Call me picky, but I wouldn’t say that was “often”.  Indeed, claimants are somewhat more likely to have costs awarded against them.

So, will many women who have been subjected to pregnancy or maternity discrimination by their employer be ‘put off’ from bringing an ET claim by John Cryer’s parliamentary question?  I guess that comes down to whether you share the Minister’s rather unusual definition of ‘many’.  But I think we can be sure that a great many more will be put off by having to fork out up to £1,200 in upfront fees, with little chance of any fee remission and – should they win – almost no chance of having costs awarded to them by the tribunal.