Busy day at work: the next Minister for #ukemplaw should not be a part-timer

The polls still suggest a close result but, with the Tory campaign in disarray and their supportive press barons suffering a collective nervous breakdown, I’ve started to feel vaguely optimistic that the next BIS employment relations minister will be a talented Labour MP such as Gloria De Piero, Stella Creasy or – if he survives the SNP tsunami – the excellent Ian Murray. And the reported remarks of Labour’s Lord Falconer, that the shadow cabinet has “very, very few” machinery of government changes in mind, has set me thinking about just how long a ‘to do’ list the new BIS minister would find waiting for them on their desk at 1 Victoria Street.

Because, as easy as it is to criticise the Labour manifesto for its lack of ambition on employment law-related reform, and the woolliness (ET fees) and/or daftness (zero-hours contracts) of some of its specific policy pledges, there’s actually quite a lot for a new Labour employment relations minister to be getting on with. In their first 12 months in the job, she or he will need to devote time and energy to some or all of the following work strands:

  • Working out how to translate the high-profile manifesto pledge to “ban the abuse of zero-hours contracts” into meaningful policy action;
  • Initiating the promised process, jointly led by the CBI and TUC, for agreeing reforms to the ET fees regime and – seemingly – the ET system more generally;
  • Working out how to implement a package of woolly pledges to enhance enforcement of the minimum wage (increased fines/penalties for non-compliance, a role for local authorities, a reformed/beefed up Low Pay Commission, and a possible new emphasis on criminal prosecutions);
  • Launching a consultation on “allowing grandparents who want to be more involved in caring for their grandchildren to share in parents’ unpaid parental leave”;
  • Developing a plan to “tackle exploitation in the care sector as a route to protecting staff and improving standards”;
  • Responding to the findings of the Equality & Human Rights Commission’s inquiry into pregnancy and maternity discrimination in the workplace (originally due out in March, but postponed until after the election);
  • Working out how to translate the pledges to “tackle undercutting by rogue employment agencies”, including by “taking action to crack down on rogue agencies that exploit workers illegally for profit”, and to “extend the Gangmasters’ Licensing Authority approach to cover sectors where there is evidence of high levels of migrant labour and exploitative working practices” into meaningful policy action; and
  • Preparing a Bill to legislate as necessary in relation to these and other strands of work.

That’s quite a ‘to do’ list for anyone to cram into five days a week, let alone someone who has a second job as a constituency MP. Yet the position of BIS employment relations minister has always been both a junior and a part-time role – the remit of the Parliamentary Under Secretary of State for Employment Relations and Consumer Affairs currently covers, in  addition to employment relations: Post Office and postal policy; consumer policy and consumer affairs; competition policy; corporate governance; company law; social enterprise; Insolvency Service, including company investigations; and BIS better regulation, efficiency and reform agenda.

So, if Labour are serious about “supporting firms to win the race to the top, not get dragged into a race to the bottom”, perhaps one minor ‘machinery of government’ change they should consider is separating employment relations and consumer affairs, and appointing a Minister of State for Employment Relations. Some of of the above work strands will involve tricky negotiations with HM Treasury, the Ministry of Injustice and other departments, and on ET reform the minister will no doubt need to bang heads together at the CBI and TUC, so it would be handy not to be at the very bottom of the ministerial food chain. And promoting the position to Minister of State level would widen the talent pool from which to select what should be a prominent voice in any Labour government formed after 7 May.

Postscript: As if I hadn’t made the case well enough above, today the following photograph emerged, showing that the current holder of the post is too exhausted from her ministerial duties to notice that her campaign team are holding her placards upside down.

Nosnims

 

Manifesto mania: NMW enforcement not a job for the Home Office

So, we’ve had the Labour manifesto. And the Labour manifesto for Work, the Labour manifesto for Women, the Labour manifesto for Young People, and the Labour manifesto for Black and Ethnic Minority communities. I imagine before 7 May we’ll have the Labour manifesto for Dog Owners, and the Labour manifesto for People Who Listen to the Archers. But today it seems we will get the Labour manifesto for Home Office officials.

According to a report in the Guardian, the main feature of this will be a new “Home Office investigative unit” to target “the illegal exploitation of migrant workers”. This will consist of a “team of more [than] 100 police officers and specialists from the Gangmasters Licensing Authority”, who will be given “new powers to stop the abuse of workers and increase the prosecutions and fines of employers who breach employment laws”.

It’s far from clear how much this new unit will cost, but the Guardian reports “it will be paid for by levying a charge on non-visa visitors to the UK which is expected to raise £55 million”. And the unit will have “one overriding duty”:

To stop the abuse that makes the working families of Britain poorer. This new unit will have the powers and funding it needs to increase the prosecutions and convictions of Britain’s worst employers: those who exploit workers and drag down the wages of everyone else.

All of which glosses over the fact that we already have not one but four public bodies (or units) with much the same overriding duty: the aforementioned Gangmasters Licensing Authority, the national minimum wage (NMW) enforcement unit of HMRC, the BIS Employment Agency Standards Inspectorate (EAS), and the working time directive unit at the Health & Safety Executive. And, to access one or more of these bodies, you have to contact a fifth: Acas.

All of these bodies/units are severely underfunded: HMRC currently gets just £12 million a year to enforce the NMW, the GLA just under £3 million, and the EAS is about five people. And, if you were a government minister with a blank sheet of paper and some £15 million to spend on ‘tackling Britain’s worst employers’, you wouldn’t design a system with four (or five) separate bodies or units. You might, as Vince Cable suggested last year, create a Workers’ Rights Agency (or, say, a Fair Employment Agency), with “the powers and funding it needs” to tackle Britain’s worst employers. (Sadly, that suggestion hasn’t got much further than the inside of Dr Cable’s head, but at least he and the Lib Dems are thinking on the right lines).

So, if you are a new minister on 8 May, charged with the same remit, and have as much as a further £55 million to spend, you really shouldn’t create yet another public body (or unit). And YOU CERTAINLY SHOULDN’T PUT IT IN THE FUCKING HOME OFFICE.

headdesk

[Postscript: here’s the Labour press release on Miliband’s speech]

 

Are there really no votes in employment rights?

So, the longest general election campaign in history – it surely started at least 12 months ago – has at last reached its final phase, with the three main political parties publishing their manifestos over a frantic three days at the start of this week. This blog’s founder, the fantabulous Sean Jones QC, has put his sanity at risk (so that you don’t have to) by ploughing through their combined 330 pages and documenting every last relevant policy commitment in the Hard Labour Guide to #ukemplaw Election Pledges. But I can’t resist adding a bit of (highly) subjective commentary.

Overall, it’s hard to avoid concluding that all three main parties see no great electoral advantage in trying to improve the working lives of some 30 million people. In 330 pages, there is just one mention of ‘flexible working’, and even that is just a reference (by the Lib Dems) to the Coalition’s extension of the right to request FW in 2014. Labour and the Liberal Democrats each use the word ‘exploitation’ in relation to workers just once, and the Tories four times – but five of those six uses of the word are in relation to migrant workers. Zero-hours contracts get six mentions by Labour, two by the Liberal Democrats, and one by the Tories, but there are no new ideas on how to tackle the exploitative use of such contracts. Despite the Coalition having handed the EHRC £1m to investigate “systemic” maternity discrimination, the issue gets just one brief mention (by Labour). And there is no mention anywhere of unfair dismissal.

Disappointingly, there is no space in the Liberal Democrats’ whopping, 160-page tome for Vince Cable’s October 2014 promise of a new Workers’ Rights Agency to “revamp efforts to enforce employment law and tackle the exploitation of workers” by combining the remits of “the minimum wage enforcement section of HMRC, the working time directive section at the Health & Safety Executive, the BIS Employment Agency Standards Inspectorate, and the GLA.” Perhaps I shouldn’t have pointed out that this was my idea. [Since I wrote this post, Jo Swinson has responded to a tweet from Sean Jones, saying “the idea still there” – ‘there’ presumably being the inside of Vince Cable’s head.]

Regular readers of this blog – hello David, Gem, Michael, Paul and Peter! – will not be surprised to hear that the first object of my skim reading was the issue of employment tribunal fees. The Tories let the cat out of the bag by claiming credit for “reducing the burden of employment law through our successful tribunal reforms” – that’s not what they said about their hefty, upfront fees at the time – and Labour can only find space for a tweaked, two-sentence version of the pledge previously set out in its Manifesto for Work:

The Conservatives have introduced fees of up to £1,200 for employment tribunal claimants, creating a significant barrier to workplace justice. We will abolish the Government’s employment tribunal fee system as part of wider reforms to make sure that affordability is not a barrier to workers having proper access to justice, employers get a quicker resolution, and the costs to the tax payer do not rise.

However, as noted previously on this blog, this raises at least as many questions as it answers. And note that the Manifesto for Work’s “costs to the taxpayer are controlled” has mutated to the arguably more restrictive “do not rise”.

Somewhat surprisingly, the Liberal Democrats are even more parsimonious on the subject of what their BIS employment relations minister, Jo Swinson, recently described as “one of the most high-profile debates around employment law in the last Parliament”. Their manifesto manages just a wishy-washy half sentence:

We will improve the enforcement of employment rights, reviewing employment tribunal fees to ensure they are not a barrier.

Whoopie doo. The Liberal Democrats devote more space to a promise of legal protection for bumblebee nests. Clearly, worker bees are more important than workers to a Liberal Democrat economy.

On the plus side, all three parties pledge to work to close the gender pay gap. The Tories say they “want to see full, genuine gender equality. The gender pay gap is the lowest on record, but we want to reduce it further and will push business to do so: we will require companies with more than 250 employees to publish the difference between the average pay of their male and female employees”. Similarly, a Labour government would “go further in reducing discrimination against women, requiring large companies to publish their gender pay gap and strengthening the law against maternity discrimination” – though there’s no indication of how they would do the latter. The Liberal Democrats only have enough space to say they would “work to end the gender pay gap, including with new rules on gender pay transparency”. The voting public could be forgiven for not realising that  little if any of this is new, mandatory gender pay gap reporting having been one of the last actions of the Coalition.

More positively, all three parties commit to the national minimum wage, and it’s especially heartening to see the Tories confirm they “strongly support the [NMW] and want to see further real-terms increases in the next Parliament”. They go on to expose the pathetic timidity of Labour’s promise of £8 per hour from October 2019, by stating: “We accept the recommendation of the Low Pay Commission that the [NMW rate] should rise to £6.70 this autumn, on course for a [rate] that will be over £8 by the end of the decade”. This is accompanied by a pledge to increase the tax-free Personal Allowance from £10,600 to £12,500, so that “those working 30 hours on the minimum wage pay no Income Tax”.

However,  as the FT’s John McDermott notes, this pledge is “less than it seems”, as a minimum wage rate of £8 per hour by the end of the decade would mean £12,480 per year for a worker on 30 hours per week. So, “give or take £20, [a Personal Allowance of £12,500] won’t make any tangible difference”. In any case, most workers on the minimum wage work fewer than 30 hours per week, so already pay very little if any Income Tax. And then there’s National Insurance.

Much the same can be said of the Tories’ other eye-catching move to outbid Labour’s core childcare offer (an expansion of “free childcare from 15 to 25 hours per week for working parents of three and four-year-olds, paid for with an increase in the bank levy”) with a pledge to “give families where all parents are working an entitlement to 30 hours of free childcare for their three and four year-olds”. This pledge is costed at £350m, which sounds too good to be true – and it is. As Sarah Hayward, leader of Camden council, points out in a splendid demolition job, the Tories have previously ‘costed’ Labour’s less ambitious pledge at £1.5bn (Labour’s own figure is £800m). So, to deliver 50% more extra hours than Labour for just £350m, “the quality of the childcare would need to be so appalling that no right-minded parent would ever subject their child to it”.

Elsewhere, the Liberal Democrats re-iterate their offer of an extra four weeks of paternity leave, but only at the current, lousy rate of pay (£138 per week, or just 60% of the NMW), and Labour repeats its February 2015 pledge of an extra two weeks, paid at a much more respectable £260 per week. And, in Labour’s separate Manifesto for Women, issued two days after the main event, there is an interesting promise to “consult on allowing grandparents who want to be more involved in caring for their grandchildren to share in parents’ unpaid parental leave, enabling them to take time off work without fear of losing their job”. This has been welcomed by the CBI, and represents a significant and well-deserved win for Grandparents Plus, which has mounted a sustained campaign on the issue.

And that’s about it. I just hope that, in 2020, at least some of the political parties will bear in mind the axiom that less is more. Because I just don’t think Sean Jones could survive 330 pages again.

NMW naming & shaming: frying the small fry?

On Tuesday, in what might well prove to be her last significant act as BIS employment relations minister, Jo Swinson named a further round of 48 employers found by HMRC to have breached the National Minimum Wage (NMW). The BIS press release notes:

Between them, the companies named owe workers over £162,000 in arrears, and span sectors including fashion, publishing, hospitality, health and fitness, automotive, care, and retail. This latest round brings the total number of companies named and shamed under the new regime to 210 employers, with total arrears of over £635,000 and total penalties of over £248,000.

With this sixth round of naming & shaming coming just four weeks after the last one (of 70 employers, on 24 February), and just two months after the one before that (of 37 employers, on 15 January), it’s clear that the rebooted regime that came into force in October 2013 has finally ground up through the gears to reach full speed. And, were there not a general election on 7 May, we could expect this pattern of monthly BIS press releases, each naming some 50 employers, to continue from now on. Accordingly, now seems a good time to take stock of what has been achieved to date, and what that tells us about HMRC’s enforcement of the NMW more generally. So I’ve been crunching the numbers.

Perhaps the most striking – and significant – aspect of my number crunching is that the numbers are pretty small. Although the 210 named & shamed employers between them owed a total of £638,100 to a total of 5,396 workers, some 72 per cent (3,863) of those workers were underpaid by the three worst-offending employers (in terms of number of workers underpaid, though not necessarily the total or average arrears owed). In 121 (58 per cent) of cases, the employer had underpaid just one worker, and only in 12 cases had the employer underpaid 20 or more workers.

Similarly, in 180 (86 per cent) of cases, the total arrears owed by the employer was less than £5,000, and only five employers owed total arrears of more than £20,000 (the current maximum penalty imposed by HMRC in addition to payment of the arrears owed, which is otherwise set at 100% of the total arrears owed). Even more strikingly, overall, the average arrears owed per worker was just £118.25, or just 0.6 per cent of the new maximum penalty of £20,000 per worker provided for in the Small Business, Enterprise & Employment Bill, on the verge of receiving Royal Assent.

Indeed, only 30 employers (14 per cent) owed arrears of more than £2,000 per worker, and only two employers owed arrears of more than £10,000 per worker (NB in both cases, there was only one underpaid worker). In most cases, the sum owed per worker was relatively small: 104 of the 210 employers owed arrears of less than £500 per worker.

The impression that HMRC’s enforcement net is catching mostly small fry is reinforced when we breakdown the 210 employers by sector. From the following chart (which shows only those sectors with two or more of the 210 employers), we can see that 41 – almost one in five – of the 210 employers are hairdressers or beauty salons, and 37 (18 per cent) are a pub, restaurant, cafe or hotel. Only three care homes or home care firms have been named & shamed to date, and in those three cases the arrears owed per worker were just £178.76, £162.81, and £87.68 respectively. Yet, as noted previously, there is broad agreement that at least 200,000 of the social care sector’s 1.5 million workers are unlawfully paid below the NMW.

Name&shame

Yes, there are a few household names among the 210, including (in this week’s round) French Connection UK, Foot Locker, 99p Stores, Pizza Hut, and Bounty (UK) Ltd, which produces the ‘Bounty Packs’ handed out to new mothers. But most such cases appear to involve what Jo Swinson calls “irresponsible mistakes”, rather than the employer “wilfully breaking the law”. French Connection, for example, owed an average of £44.78 to 367 workers, while fellow high street fashion retailer H&M owed an average of just £4.82 to 540 workers.

All in all, the detail behind the headline numbers suggests that whoever has Ms Swinson’s job after 7 May should do rather more than simply decide whether to continue with the monthly BIS naming & shaming press releases. It’s time that HMRC’s enforcement net started catching some of the bigger (and nastier) fish in Britain’s minimum wage rogue lake, as well as the small fry. And that may well require new priorities, new strategies, and (even more) new money.

 

 

 

 

ET fees: the BIS minister that time forgot

On Saturday, in a stunning example of the laughably low journalistic standards at the Daily Mail and the inability of some political dinosaurs to adapt to changes in the known environment, the paper re-ran it’s infamous story of the ‘£1.6 billion a year gravy train for employment lawyers’ derailed by ET fees.

In a bold attempt on the world record for the number of factual errors in the opening paragraph of a newspaper article, and appropriately illustrated with a stock photo of a gavel – never used in British courts, let alone employment tribunals – the paper’s political editor, James Chapman, writes:

“The £1.6 billion a year industrial tribunal gravy train has been brought to a shuddering halt. Official figures reveal there has been a fall of almost 80 per cent in the number of cases brought against firms by employees. Business leaders said the Government’s introduction of changes to deter vexatious claims appeared to have ended the damaging ‘no win, no fee’ culture that flourished under Labour.”

At no point in the article does Chapman bother to explain how he arrived at his figure of £1.6 billion a year, but he does throw around a few clues by telling us that, thanks to ET fees:

“The level of claims has returned to levels seen in the early 2000s, before the escalation of no win, no fee cases helped the number to spiral to almost 240,000 a year. Under the last government the taxpayer met the £86 million a year cost of running the tribunals. Firms were spending around £1.6 billion a year in defence costs. The British Chamber of Commerce estimated the average cost to a business of defending itself at tribunal is £8,500, and the average cost of agreeing a settlement is £5,400.”

However, we don’t need Chapman to tell us how he got his £1.6 billion figure, because we know this from the original version of his article, penned by Steve Doughty and which appeared in the Daily Mail as long ago as 29 July 2014. That article – headlined “Hallelujah! The gravy train’s derailed” – informed us that “there were 191,000 employment claims in the financial year to March 2013 … with the average defence costing £8,500.” Multiply £8,500 by 191,000 and you get … £1.6 billion.

Strangely, that July 2014 article made no mention of ‘no win, no fee’ lawyers – the target of Doughty’s wrath being “the multi-billion pound industry built on vexatious discrimination claims against employers.” But the evident source of that vexatious story (and another in the Sunday Express the same week), Conservative BIS minister Matthew Hancock, has this time put his head above the parapet to tell Chapman that:

“Labour’s compensation culture was totally out of hand. It cost millions and warned businesses off creating jobs because of the risk of being held to ransom by a spurious claim. We have worked hard to reform tribunals so they work better and more fairly … and genuine abuses can be dealt with properly and only reach court where absolutely necessary. Yet Ed Miliband has not learned lessons and would reverse this progress.”

In fact, it is Matthew Hancock and James Chapman who have failed both to learn the lessons from the debacle of the Daily Mail’s July 2014 article, and to absorb the factual evidence that has emerged from the Ministry of Injustice over the past eight months.

Let’s leave aside the facts that employment tribunals haven’t been called industrial tribunals since 1998, and that employment tribunal cases are down by some 65 per cent, not “almost 80 per cent”, and focus on Chapman’s ignorant confusion of employment tribunal claims, and employment tribunal cases. For the BCC’s average cost figures of £8,500 for a business to defend itself at a tribunal hearing, and £5,400 to agree a settlement, are per employment tribunal case, not employment tribunal claim. And there have never been 191,000 – let alone 240,000 – employment tribunal cases a year; those figures are for the total number of claims, including both single claimants and all the claimants in the relatively small number of multiple claimant cases. If the concern is the impact of ET claims on business, then it is the total number of cases (single claims/cases + multiple claimant cases) that is most meaningful, since that is also the number of employers affected.

In 2012-13, the headline total of 191,541 claims used by Doughty to calculate his £1.6 billion figure consisted of 54,704 single claims/cases brought against 54,704 employers (or slightly fewer than that, in fact, as some claims would have been against the same employer), and a total of 136,837 multiple claimants in just 6,104 multiple claimant cases brought against 6,104 employers. So Doughty would have been a little more accurate if he had multiplied the BCC’s figure of £8,500 by 60,808, not 191,541.

Furthermore, the £8,500 figure is wrong, firstly because it’s a considerable over-estimate (the government’s own figure is £6,200), and secondly because only about one in five cases go to a tribunal hearing. Most cases are settled or otherwise resolved before they reach a hearing, so the BCC’s lower figure of £5,400 applies (though, again, the government’s own figure for settlements is £3,500). Indeed, the government’s figure for the average cost to employers across all tribunal outcomes is just £3,900.

So, all in all, Doughty’s bogus figure of £1.6 billion – mindlessly regurgitated eight months later by Chapman – is more like £366 million (£0.37 billion), if you accept the BCC’s dodgy average cost figures, and just £237 million (£0.24 billion) if you prefer the government’s more reliable average cost figure of £3,900. And, finally, only about two-thirds of that total cost to employers is borne by businesses, as one in three employment tribunal cases (including the vast majority of those pesky multiple claimant cases) are brought against employers in the public and voluntary sectors. In short, Doughty and Chapman overstate the ‘problem’ for their beloved private sector firms by a factor of 10.

As for the dinosaur Hancock, his entire argument rests on the assumption that only weak or vexatious claims/cases have been deterred by the hefty, upfront fees. But if that were true, and only strong claims/cases were making it to the tribunals, the proportion of successful claims would have risen towards 100 per cent, and the proportion of unsuccessful claims would have dropped towards zero. And what we – but seemingly not the Minister – have learned since he first fed the ‘£1.6 billion gravy train’ story to the Daily Mail and Sunday Express in July 2014, is that the very opposite is happening.

As the following chart (based on official figures) shows, the proportion of successful claims (the blue line) has gone sharply down, not up, and at just eight per cent in the most recent quarter for which the figures are available (July to September 2014) was less than half that in each of the six years before the introduction of fees. And the proportion of unsuccessful claims is markedly up, not down.

outcomes

Now, it might be said that the proportions shown in the above chart are not the full story, as four in five claims do not go to a hearing, and are either conciliated (i.e. settled) by Acas, or are withdrawn by the claimant. And, as Naomi Cunningham and Michael Reed have noted recently, “most of these withdrawals, but not all, represent some form of non-Acas settlement.” So, it might be said that the proportion that matters is the grand total of those claims that are successful at a hearing or result in a default judgment, plus those that are conciliated by Acas, and those that are withdrawn.

However, as the following chart shows, that proportion has also gone down, not up.

outcomesALL

So, another Hancockusaurus and Daily Mail #Fail. Though you do have to admire their persistence.

Employment tribunal Fees-Another Twist of the Knife

Today High Court fees are increased by up to 600%, leading Michael Reed the Legal Officer Employment at FRU to quip on twitter

“Can I just say that when we told MoJ employment tribunal fees were disproportionate compared to court fees, this wasn’t what we had in mind”.

Pricing claimants out of the courts has severe implications for access to justice but my concern today is with a decision of the Employment Appeal Tribunal reported last week, L Goldwater & Others -v- Sellafield Ltd.  This was a decision of HHJ Shanks on the papers about a cost application for the recovery of the £1,600 fees paid by the employees for the privilege of successfully correcting the error of an employment tribunal judge (where they may have paid a fee of at least £390), on a claim for shift allowances.  It is not clear from the original judgment how much money was at stake, but there appear to be 16 claimants affected.

The original reserved decision allowing the appeal was handed down on the 26th November, and Thompsons solicitors on behalf of the successful appellants, made an application under rule 34A(2A) of the EAT Rules for the respondents to pay the £400 issue fee and the £1600 hearing fee.  Rule 34A(2A) states

“If the Appeal Tribunal allows an appeal, in full or in part, it may make a costs order against the respondent specifying that the respondent pay to the appellant an amount no greater than any fee paid by the appellant under a notice issued by the Lord Chancellor”

Eversheds solicitors, on behalf of the respondents made written submissions as to why the fee should not be paid even though they had comprehensively lost the appeal.  No doubt they were encouraged to be inventive in their submissions by recent decisions of the EAT where successful appellants have not had a cost order for the fees made in whole or part in their favour such as Look Ahead Housing -v- Chetty.  In that case an appeal was successful but the EAT judge exercised a residual discretion not to order the fee to be paid by the losing party in the appeal.  Eversheds submissions were:-

  1. The appeals were not wholly successful.  This is described as false and “almost disingenuous” and any fair reading of the original judgment in November would be that the Appellants had won.
  2. There is no entitlement to an order.  The judge has a wide discretion and it was “perfectly appropriate and reasonable” for the respondent to resist the appeal.  These submissions were rejected on the basis the Appellants had to bring the appeal to correct the employment judge’s error.  Incidentally, I always considered it unfair that the parties had to pay for the Employment Judge’s mistake and having to pay a fee only compounds matters.
  3. The fees were not paid by the Appellants but by their union, the GMB and so no award can be made under Rule 34A(2A).

I think it is fair to say this is a particularly speculative argument turning on the most literal reading of the language of Rule 34A(2A), especially as HHJ Shanks notes the definition of “costs” in Rule 34(2) says

“… “costs” includes fees … incurred by or on behalf of a party … in relation to the proceedings …”

There was no dispute that the tribunal claims and appeals were supported by the Appellants trade union, the GMB, no doubt under the union’s legal advice scheme.  Free legal advice is one of the main benefits of union membership.  It is akin to legal expense insurance.  Many unions extended their schemes to cover the cost of fees when they were introduced in July 2013.  Just like legal expense insurance, all the schemes are subject to terms and conditions that vary, but may include continuing to pay union dues, meeting criteria as to the prospects of success, following advice from retained solicitors and payment of all costs and expenses if the member instructs new solicitors.  Nearly all schemes reserve a residual discretion to the union as to whether to support or continual to support a claim.  In Mardner -v- Gardner & another the HHJ Eady in EAT held that the fact that a party was insured was not a relevant factor to take into account when considering whether to award costs.  There were public policy grounds for holding that a Respondent should not benefit from the prudence of the Appellant in taking out insurance.

Incidentally, HHJ Eady exercises her discretion at the end of the decision to award the £1600 appeal fees to the Appellant.  Although it is not clear from the judgment, it may well be a reasonable supposition to assume that the appeal was supported by legal expense insurance and the fee ultimately paid by the insurer.  There is just a finding that the claimant had “incurred” the fee.

HHJ Shanks refers to the difference in wording between “incurred by or on behalf of” in Rule 34(2) for the definition of costs and the limit on the “amount” of costs which can be made under Rule 34A(2A) to “…any fee paid by the appellant”.  He finds that the Appellants paid no fees at all in this case and so the maximum order that could be made is nil.  He therefore dismissed the application for fees to be paid whilst pointing out his decision is confined to Rule 34A(2A) and did not affect Rules 34A(1) and 34B-D about ordinary costs or expenses.

The reaction on twitter was immediate and damning.  The decision is wrong and leads to absurd results.  “Paid by” must include “paid on behalf of” or “paid by union/insurer/etc”. 

More importantly, the wording of Rule 34A(2A) is replicated in the Employment Tribunals (Constitution and Rules of Procedure) Regulations, 2013 Rule 75(1)(b), Rule 76(4) and Rule 78(c) where there  is reference to “tribunal fee paid by the receiving party”, “where a party has paid a Tribunal fee…” and “…a specified amount as reimbursement of all or part of a Tribunal fee paid by the receiving party”.  I anticipate it will not be long before a similar argument is made in the tribunal to resist a claim for fees when a claim is lost.  It will not just be union supported claims, but also legal expense insurance claims, No Win, No Fee lawyers or even solicitors who pay fees upfront in an emergency when a claim is going out of time before any retainer agreement is signed.

Until the matter is resolved (I understand the Appellants are considering an appeal), advisers should ensure they can demonstrate that the party claiming the fee has paid” it.

Ironically, if the case reaches the Court of Appeal where an inflated court fee will be paid there will be little or no argument that the losing party has to pay the winning parties costs and disbursements, including any court fee (although see Unison -v- Kelly for an exception).

Access to justice in employment cases just got even harder.

NMW enforcement: the politics (and economics) of justice

Earlier this week, Labour launched a press and Twitter offensive against Conservative BIS minister George Freeman, after the latter appeared to dismiss the former’s concern about enforcement of the minimum wage as “the politics of envy”. During a short Delegated Legislation Committee debate on draft minimum wage Regulations on Monday, Freeman had been pressed by Labour MPs Stella Creasy and Stephen Doughty on the number of criminal prosecutions of employers for breach of the minimum wage – just one under Freeman’s government to date. And, towards the end of the debate, Ms Creasy hinted at a surprising lack of knowledge of the enforcement regime on her part when she demanded:

Will the Minister talk us through the consequences to companies of not following the [NMW] regulations? If the number of prosecutions is so low, and those who are named and shamed can bear the brunt of not being popular, is there really any consequence of not paying all those low-paid workers?

The Minister responded:

As I set out in my opening remarks, there are very heavy penalties [for non-compliance]. The hon. Lady may not ever have run a business, but I assure her that for people who do so, fines and reputational damage are a major force for compliance. Prosecutions may satisfy the politics of envy of the Opposition, but they are not the best mechanism to drive compliance.

A crass remark, for sure, but one problem with Labour’s head office and MPs making such a loud and gleeful noise about it is that it invites us to ask what approach Labour would take to enforcement of the minimum wage should they find themselves in government on 8 May.

For, crassness aside, the Minister makes a good point. The criminal prosecution of minimum wage rogues has never been a key element of the enforcement regime, with the Labour government that established the regime itself managing only seven prosecutions in the four years after criminal sanctions came into force in 2006. Indeed, that Labour government had deliberately created an enforcement regime based on HMRC securing compliance (and payment of arrears to workers) through investigation and the imposition of civil penalties, without resorting to resource-draining prosecutions in the criminal courts. So it is at least arguable that every prosecution represents a failure of the enforcement regime, as designed by Labour. In other words, the fewer prosecutions there are, the better.

Certainly, the number of prosecutions is not a very helpful yardstick. What matters most is whether minimum wage-flouting employers believe there is a real risk they will be investigated by HMRC. And that depends upon the financial resources made available to HMRC for intelligence gathering, inspections, and investigations.

In any case, the inescapable fact is that criminal prosecutions are at least 25 times more costly than a standard investigation by HMRC. According to official figures cited in the Trust for London report Settle for nothing less, a criminal prosecution costs at least £50,000, while the average HMRC investigation costs just £1,850. So, if prospective ministers such as Ms Creasy want there to be more criminal prosecutions from 7 May, they will either have to come up with (a lot) more money, or face presiding over a substantial cut in the number of HMRC investigations.

To date, there has been no indication from any shadow minister that Labour would increase the spend on minimum wage enforcement – which the Coalition has recently increased by an impressive 50 per cent, from £8 million in 2013-14, to £9 million in 2014-15, and a budgeted £12 million for 2015-16. Indeed, Vince Cable and Jo Swinson have steadily shot most of Labour’s minimum wage enforcement foxes: naming & shaming is (finally) gearing up; the maximum civil penalty has been increased from £5,000 to £20,000; and, as I’ve noted previously on this blog, that maximum penalty will increase again to a more than adequate £20,000 per underpaid worker just as soon as the Small Business, Enterprise & Employment Bill becomes law. Poor Labour MPs are left waving little more than a meaningless pledge to ‘increase’ the maximum penalty to £50,000 (per employer or per worker, no one’s thought it necessary to spell out).

So, do Labour plan to reshape the enforcement regime, with a new emphasis on (expensive) criminal prosecutions? I put that question to Ms Creasy and Mr Doughty on Twitter, but they didn’t respond. I guess it’s easier to make fun of hapless government ministers than it is to explain what you’d do differently if you were sitting in their ministerial chair.

Postscript: Ms Creasy appears to have read this post, but has not (yet) taken the opportunity to explain the extent to which criminal prosecutions would feature in a Labour government’s approach to enforcement of the minimum wage.

Labour losing race to the top on employment rights policy

So, the supposedly free-market Tories have had their Stalinist-sounding ‘long-term economic plan’, and now Labour has a ‘better economic plan’. Towards the end of the latter, a chapter entitled ‘Supporting firms to win the race to the top, not get dragged into a race to the bottom’, states:

Too often it is assumed that the only way for firms in sectors such as retail, hospitality and social care to compete is by cutting employee pay and conditions. But many firms in these sectors want to be able to compete through higher skill, higher wage business models, without being undercut and dragged into a race to the bottom.

The [Coalition] Government has actively encouraged a race to the bottom by weakening the UK’s enforcement regime and promoting a hire-and-fire culture: doubling the qualification period for unfair dismissal, introducing fees for employment tribunals, and setting up a controversial scheme whereby employees trade their employment rights in return for a share in the company.

[Labour’s new industrial strategy] is about giving employers the tools they need to raise standards, and also protect them from being undercut, by raising the minimum wage, ending the abuse of zero-hours contracts, and making it illegal to use agency workers to undercut wages and conditions.

Bafflingly, there’s no further mention of – let alone any pledge to reverse – that doubling of the unfair dismissal qualifying period. Nor is there any mention of Labour’s previous pledge to reform the tribunal fees that have done so much damage to the ‘enforcement regime’. Given that employer lobby groups such as the CBI and FSB have openly called for the hefty fees to be substantially lowered, this is an astonishing omission from what is clearly intended to be a business-friendly document.

Indeed, once you cut through the rather repetitive references to ‘the race to the bottom’ and ‘raising our ambitions for the domestically-traded sectors’, there are precious few commitments to policy reform that might actually help achieve the plan’s lofty goals. Apart from reiterating both welcome plans to “encourage more employers to pay a living wage” and the disappointingly modest pledge to “increase the minimum wage to £8 an hour before 2020”, the 80-page document sets out just three broad policy pledges specific to “reducing the pressures employers face to get dragged into a race to the bottom”:

1. Banning the abuse of zero-hours contracts: giving workers on zero-hours contracts new legal rights to be protected from employers forcing them to be available at all hours, insisting they cannot work for anyone else, or cancelling shifts at short notice without compensation, and giving workers on zero-hours contracts who are actually working regular hours week-in week-out a right to a contract with fixed minimum hours. We will also introduce a new Acas Code of Practice [on zero-hours contracts].

This is all very well, but – as I’ve previously noted elsewhere and the document itself recognises just two paragraphs later, in relation to enforcement of the minimum wage – there is no point having rules if they are not enforced. And, presumably, the only way to enforce these proposed new rules would be for individual workers to pursue a tribunal claim against their abusive employer. Which very few workers would be likely to do, even without the fees of up to £1,200 on which the document is so surprisingly silent. So, new Labour ministers could huff and puff all they like, but their shiny new rules wouldn’t blow many rogue employers down.

2. Tackling undercutting by rogue employment agencies: taking action to crack down on rogue agencies that exploit workers illegally for profit – for example through a licensing system that ensures agencies are complying with basic standards or stopped from operating; extending the Gangmasters Licensing Authority approach to cover sectors where there is evidence of high levels of migrant labour and exploitative working practices; and closing the loophole in the Agency Workers Directive that allows agency workers to be used to undercut employees.

This is more encouraging, even if it is somewhat ill-defined. However, both the employer lobby groups and past Labour ministers have been strongly against extending the GLA’s licensing regime to other sectors – with good reason. And, since 2010, Coalition ministers have reduced the BIS employment agency standards inspectorate to a rump of just three staff. So it’s not at all clear who Ed Miliband, Rachel Reeves and Chuka Umunna think would do all the cracking down. In short, there’s a lot of work yet to be done on this policy pledge if it’s to become more than a vague sop to the TUC, which has stuck rigidly to its call to extend the GLA regime.

3. Ensuring proper enforcement of the rules: there is no point in having rules if they are not enforced. Under this Government, the number of inspections into whether the National Minimum Wage was being paid has more than halved and there have been just two prosecutions since 2010. There is widespread agreement that better enforcement would support employers that play by the rules. Labour will improve this by: increasing the fines for breaching the minimum wage to £50,000; extending the remit of the HMRC minimum wage unit to cover holiday pay; giving councils a role in enforcement; and trebling the fines for knowingly employing illegal migrants.

The last of this third set of policy actions is little more than dog whistle politics, but there’s a good case for capitalising on the local, front-line knowledge of councils in order to improve enforcement of the NMW. And extending the HMRC unit’s remit to cover holiday pay is something I suggested in 2011, as an obvious first step in incrementally fusing the HMRC unit and the GLA into a genuine fair employment agency; more recently, it was a recommendation of the June 2014 report on low pay by Alan Buckle.

But Labour are kidding themselves – and the voting public – if they think that increasing the maximum penalty for breaching the NMW to £50,000 will have more than a marginal impact. For the penalty is set at 100 per cent of the total arrears owed, and in all but a handful of cases that sum is relatively small, and certainly well below £50,000. For example, among the 162 NMW-flouting firms named and shamed by BIS to date, including the tranche of 70 named today, the total arrears owed – and so the penalty imposed – was less than £10,000 in 154 cases, and exceeded the current maximum of £20,000 in just four cases. And, as they each involved a number of workers, those four cases would have been more than adequately covered by the Government’s proposed new maximum penalty of £20,000 per underpaid worker, set out in the Small Business, Enterprise & Employment Bill and almost certain to become law before Parliament is dissolved on 30 March.

Of course, Labour could increase the penalties by increasing the penalty rate from 100 per cent of the arrears owed to, say, 200 per cent. But that’s quite different to what Labour are saying they would do, and might be quite hard to justify when, in the vast majority of cases, the total sum owed in underpayments is relatively small, and the employer is a (very) small business. Among the 162 firms named and shamed by BIS, the average underpayment per worker was just £306.11, and no fewer than 35 of the 162 firms are hairdressers or beauty salons. We’re (mostly) not talking big corporates here.

All in all, Labour’s ‘better economic plan’ is depressingly short on credible, fully-formed (and costed) policy ideas for halting the race to the bottom in pay and working conditions. The good news is that I’m available to help sort that out, and my daily rate is a lot less than Jack Straw’s.

Waiting for your call, Chuka.

 

 

 

 

 

 

Rights At Work

“Workers and their families have always distrusted the law, and rightly so. It is not an instrument geared to our needs, and the people who administer it are unrepresentative, out of touch and antagonistic to our demands. Nevertheless, through political and industrial action workers have secured a set of legal rights which can be exploited.

Use the law only when industrial activity fails…Going to law is always a risky business-it takes time, it exposes individual workers to publicity and harassment, it hardens attitudes, and workers rarely win outright…You should only use the law when all prospect of solving an industrial problem through negotiation, conciliation or industrial action have vanished”.

Powerful words especially if you are a young, post-grad student about to start writing a thesis with the pretentious title “The Historical Development of Individual Employment Law”. They are from the first 2 paragraphs of “Rights At Work, A Workers Guide to Employment Law” published in 1979 by Pluto Press.  This book was found on the shelf of many union officials and quite a few labour lawyers, including myself in the 1980’s.

The words quoted above deliberately echo the famous opening words of “The Worker and the Law” by his teacher at the LSE, Bill Wedderburn

“Most workers want nothing more of the law than that it should leave them alone”

The author has just died, tragically young…HHJ Jeremy McMullen QC.  He was then an official in the General and Municipal Workers Union.  Subsequently he became a practising barrister, QC and Senior Judge at the EAT until 2013.  A pretty unique career path.

I leave it to others to write his obituary.  My purpose is to explore whether Jeremy was right and whether what he said above is still valid today.

In 1968 the Dagenham Fords Sewing Machinists (as in the film and now  musical with the earworm of a title tune, “Made in Dagenham”) went on strike for equal pay.  They wanted re-grading from unskilled B grade to semi-skilled grade C.  They settled for a wage rise to 100% of B grade but not the re-grading to grade C.  They didn’t get “equal pay” with their male colleagues.

In 1983, the Equal Value Amendment Regulations were introduced by a reluctant Tory government on the back of an adverse European Court judgment.  The first case brought to tribunal in 1984 was by the same Dagenham Fords Sewing Machinists making the same demand for re-grading. They argued their work was of equal value to that of the male semi-skilled grade C workers.  My firm was instructed by the union to act.  I was a lowly articled clerk taking notes at conferences and running errands.  Suffice to say the case was lost as was an appeal.  The women then went on strike in December 1984 and stayed out for 9 weeks closing down production. Arbitration through ACAS led to a ruling that they should be re-graded to grade C.

Ten years later, a union activist on the Underground was dismissed for allegedly assaulting a manager.  Now qualified as a solicitor, I was instructed by the union to take a claim to the tribunal for interim relief on the grounds of union membership and activity.  The case was won, mainly due to the brilliance of my client in the witness box.  London Transport refused to reinstate and so the tribunal made a continuation of contract of employment order (I remember being quoted in the Evening Standard, saying how outrageous it was that tax payers money was being wasted paying my client to tend his garden).  The Central Line then had a 1 day strike, the matter was referred to an ACAS conciliator and my client got his job back.  He is now Assistant General Secretary of the union.

At the Matrix Chambers Employment Seminar yesterday in a discussion about the increase in interim relief cases in whistleblowing claims, James Laddie QC asked me why there were so few trade union activities claims.  My recollection was that I probably ran on average 1 case per year but was only successful in one other case in 30 years (ironically where I instructed Jeremy).  The common factor in both cases was the performance of my client in the witness box compared with the employer’s witnesses.  Such claims are very hard to prove to the satisfaction of the tribunal and even if you win the employer doesn’t have to reinstate.  The employer also gets 2 bites of the cherry to get their evidence right as to why trade union membership or activities played no part in the decision to dismiss, “anyone is free to join a union” and “some of their best friends are union members”.  Tactically interim relief is often not the best option.

These are but 2 examples from my personal experience that seem to bear out Jeremy’s words. There could be many more.  Of course when Jeremy wrote those words we were in a very different economic world.  The labour market was completely different.  Union density is now 25.6% with 6.5m members.  In 1979 it was over 50% with 13.1m members.  For many workers today, the protection of strong union membership with terms and conditions set by collective bargaining, is never going to happen.  The law is the only protection of minimum standards of fairness and dignity at work.  The reality for many workers is insecurity and exploitation, with pay below the minimum wage, zero hours contracts, casualisation and unsafe workplaces.

Matters will only get worse if the Tories are elected in May with a working majority.  We are promised further restrictions in strike ballots with new minimum thresholds.  Osborne hinted at Davos there would be further changes to facilitate labour mobility (no fault dismissals a la Beecroft?)

And now you have to pay for the privilege of enforcing your rights.  If Jeremy was writing “Rights At Work” today he would add a sentence.  “And you have to pay a £1200 tax to enforce your rights”.

Passing new laws is not necessarily the answer.  What is?  I await your comments.

There is to be a Jeremy McMullen Memorial Fund to support female candidates for the Bar through work-experience and marshalling.  Donations can be made here.

HHJ Jeremy McMullen QC 1948-2015, trade union official, barrister, judge, friend, neighbour and occasional cycle to work companion, you will be missed but the debate about Rights at Work will continue.

Do BIS & HMRC care about the care sector?

There was much ministerial self-satisfaction in evidence yesterday, as BIS named & shamed a further 37 employers for breaches of the national minimum wage. This brings the total number of firms named since the scheme was rebooted in October 2013 to a less than impressive 92. Or just 90, if you allow for BIS wrongly naming, so not actually shaming, two of the 25 firms it named in June last year.

“Paying less than the minimum wage is illegal, immoral and completely unacceptable,” said BIS minister Jo Swinson. “If employers break this law they need to know that we will take tough action by naming, shaming and fining them as well as helping workers recover the hundreds of thousands of pounds in pay owed to them.”

Or the average of £4.82 in pay owed to them, in the case of the 540 workers to whom retailer H&M failed to pay a total of some £2,600. It was this case that – no doubt to the delight of press officers at BIS and the chagrin of those at H&M – most national media chose to focus on, presumably because H&M were unlucky enough to be the first (and so far only) household-name retailer to be shamed by BIS. Never has so little been owed to so many by “time-logging errors in some stores”.

Of course, household-name corporations like H&M – which, according to the Independent, made profits of “more than £600m in the last quarter alone” – could avoid the risk of such adverse publicity by paying their staff a living wage, rather than just the legal minimum.

However, it was another of the 37 shamed employers that caught my eye. Ultimate Care UK Ltd, in Ipswich, became the first of Britain’s 35,000 adult social care employers (i.e. both residential and domiciliary care providers) to be named & shamed by BIS, for failing to pay a total of £613.79 to seven workers. With just 15 care staff, and having won a National Home Care Employer of the Year (< 250 employees) award in 2011, Ultimate Care are probably feeling as aggrieved as the corporate fat cats at H&M at being shamed by BIS when there are clearly a great many bigger fish in Britain’s pool of minimum wage rogues.

Indeed, just two days before BIS dumped on Ultimate Care, Jo Swinson’s Liberal Democrat colleague Paul Burstow – a former health minister (2010-12), and chair of a Commission on Home Care – used a Westminster Hall debate to highlight a number of challenges in the adult social care sector, including “the low pay, low status culture that pervades the sector.” Noting that the National Audit Office estimated in early 2014 that as many as 220,000 (15 per cent) of the sector’s 1.5 million workers are illegally paid below the minimum wage, and that “the problem is getting worse, not better”, Mr Burstow called for action to ensure that “those who are exploiting their workers” are “properly and vigorously pursued.”

Mr Burstow is far from alone in contrasting the evidence of systemic flouting of the minimum wage in the sector, with the apparent lack of effective enforcement action against the employers in question. In March 2013, a number of MPs – including Simon Hughes, Liz Kendall, and Alison McGovern – expressed concern about the exploitation of their constituents during a Westminster Hall debate initiated by Labour MP Andrew Smith. And in August that year, a report by the Resolution Foundation think tank highlighted the “national scandal” of care workers being illegally paid as little as £5 per hour:

While headline pay rates for care workers who visit clients at home are set at or above the national minimum wage of £6.19 an hour, in practice those workers often lose at least £1 an hour because they are not paid separately for the time spent travelling between appointments and because providing decent care often takes longer than the time allocated by the employer for each visit. This would mean that over the course of a year, a care worker who spent an average of 35 hours a week at work for 48 weeks would lose out on more than £1600.

In November 2013, an evaluation by HMRC of its enforcement work in the social care sector in 2011/12 and 2012/13, including both complaints made via the Pay & Work Rights Helpline and targeted enforcement against 40 residential care providers and 40 domiciliary providers, concluded that inspectors had “identified higher and increasing levels of non-compliance with minimum wage legislation than has been previously found in the sector.” HMRC noted:

[We] are concerned that many employers had failed to keep sufficient records of working time to demonstrate that workers are being paid at least the national minimum wage, particularly given that non-payment of travelling time for workers in domiciliary care was commonplace [sic].

In May 2014, the Kingsmill Review – a report into working conditions in the sector by Baroness Denise Kingsmill, commissioned by Labour leader Ed Miliband – concluded that “the low status of care work and poor treatment of workers has led to a vicious downward spiral, with widespread exploitation.” Two months later – in response to the March 2014 NAO report cited by Paul Burstow – the Public Accounts Committee of MPs said they were “astonished that up to 220,000 care workers earn less than the minimum wage and little has been done to rectify this.”

In November 2014, Andrew Smith initiated a second Westminster Hall debate, during which Labour MPs queued up to express their concern at the lack of government action on the issue. And, last month, launching a campaign and petition calling on ministers to “end the scandal of illegally paid care workers”, the trade union Unison noted that:

In 2011 and 2013, HMRC investigated the care sector and found that only half of care providers were paying [at least] the minimum wage. Thanks to those investigations, several companies were forced to pay care workers the money that they were owed.

Now, because of the ongoing cuts to care budgets and a lack of follow-up action from HMRC, the situation has become worse. This is in part because most care workers are on zero-hours or temporary agency contracts, with the employers cutting out paid time wherever they can. A full day on the job can translate into only a handful of paid hours.

In short, pretty much everyone who has considered the issue has concluded that exploitation, including non-compliance with the minimum wage, is rife in the social care sector. So why were investigations completed in relation to just 70 residential care homes in the four-year period 1 April 2010 to 31 March 2014? Why has the overall number of investigations by HMRC (i.e. not just the care sector) fallen in each of the past three years, from 1,140 in 2010-11, to 680 in 2013-14? And why does the Government say, in its recent evidence to the Low Pay Commission, that “non-compliance as a result of gross exploitation is very low”? Something’s not right here.

In response to Paul Burstow’s Westminster Hall debate, BIS minister Jo Swinson said:

Proactive investigations happen. There was a particular period of targeted enforcement in the care sector, from 2011 to 2013. We recognise that the issue is important and are returning to the care sector for proactive work. That process is now under way, so more will happen. Currently, 94 employers in the care sector are being investigated for national minimum wage issues, and when those investigation conclude, we will see whether they have broken the law. If so, there are tough penalties, including naming and shaming, and we have taken steps to increase the resources available to HMRC for that vital work.

Presumably, one of those 94 care sector firms is the former employer of Debra Claridge, who made a complaint to HMRC about prolonged payment below the minimum wage (due to non-payment for travel time between appointments) as long ago as November 2012, but – astonishingly – has still not had her case resolved.

Ms Swinson has (laudably) made a habit of including the phone number of the Pay & Work Rights Helpline in her contributions to House of Commons debates and replies to written parliamentary questions, but it makes a mockery of the minimum wage enforcement system for those who follow the Minister’s advice and call the Helpline – as Mrs Claridge did – to then wait two years or more for HMRC to conclude its investigation and recover the arrears owed (or close the case and explain why).

All in all, there is a clear need for a step-change in enforcement of the minimum wage, not least to tackle the “commonplace” but unlawful practice in the domiciliary care sector of not counting travel from one work assignment to another as working time. In a letter to Jo Swinson co-signed by 36 other MPs, Andrew Smith has now requested an urgent meeting to “discuss how BIS, in tandem with HMRC, the Department of Health, and the Department for Communities and Local Government, can ensure that care providers operate within the law and that all care workers are legally paid.”

The £3 million increase in HMRC’s enforcement budget for 2015-16 that BIS announced alongside the naming & shaming of H&M, Ultimate Care and 35 others – an increase not to be sniffed at in these days of austerity and cuts – is clearly welcome, and will no doubt make a difference. But even £12.2 million per year is a piddling sum, given the (growing) size and nature of the challenge. The next government is going to have to do a lot more than name and shame a single social care employer.