The latest quarterly ET stats in three charts

Yesterday saw the publication by the Ministry of Injustice of the latest set of quarterly ET statistics, covering the period April to June 2015 (i.e. Q1 of FY 2015/16). This is no longer as exciting an event as it used to be, back in the first half of 2014, when each new set confirmed the dramatic and sustained impact on claim/case numbers of the hefty, upfront fees introduced on 29 July 2013. But for wonks like me the statistics are still of great interest, not least for what they tell us about the trend in claim outcomes, which in turn tells us quite a lot about the ‘rough justice’ effect of fees. So here are a few charts, covering what I see as the most interesting aspects of the statistics.

ET case numbers now appear to have stabilised

For obvious reasons, there was great variation in the monthly number of new ET cases in the summer of 2013, linked to the introduction of fees, and in the spring of 2014, linked to the introduction of ‘mandatory’ early conciliation by Acas. However, the figures for Q1 of 2015/16 suggest that case numbers have now stabilised, at about one-third of pre-fees levels.

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Some 50,000 single claims/cases have already been ‘lost’ to fees

In July, when dismissing Unison’s appeal against the High Court’s rejection of its two applications for judicial review of the fees regime, Lord Justice Underhill stated: “It is quite clear … that the introduction of fees has had the effect of deterring a very large number of potential claimants.” And we can easily quantify that “very large number”, by comparing the actual number of single claims/cases against the number we could have expected, had fees not been introduced in July 2013. To do so, we simply need to generate projections allowing for (a) the “historic downward trend” in case numbers that began in 2010/11, but which ministers either failed to spot or ignored in 2012, when deciding to introduce fees; and (b) the introduction of Acas early conciliation, which was intended to bring about a 17 per cent reduction in the number of claims, in April/May 2014.

Clearly, that “historic downward trend” may not have continued at a constant rate (or even at all) into recent quarters, and the actual impact of Acas early conciliation appears to have been more modest. So the following chart sets out two alternative projections (one low, one high) of single claim/case numbers. I won’t bore you now with the detailed assumptions behind each projection, but if you’re keen to know just get in touch.

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Based on these projections, and ignoring multiple claimants (the numbers of which are not so predictable), Underhill LJ’s “very large number of potential claimants” deterred by fees was somewhere between 47,350 and 52,200, as of 30 June 2015, and continues to rise by some 5-6,000 every quarter (so, at the time of writing, might well be approaching 60,000). Furthermore, based on historic case outcome trends, about 80 per cent of those 47-52,000 workers would have obtained a favourable judgment on or settlement of their claim, had fees not been introduced.

There is still no evidence to support the Grayling-Hancock theorem

According to the Grayling-Hancock theorem – which seems unlikely to win The Fields Medal for its authors – every single one of those 47-52,000 single claims/cases ‘lost’ to fees was a “vexatious”, “bogus” or otherwise unfounded claim that should never have been brought in the first place. Yep, every single one – for there has been absolutely no ‘rough justice’ as a result of the fees.

However, were it the case that all (or even just most) of the 47-52,000 single claims/cases ‘lost’ to fees  were “vexatious” or otherwise without merit, then we could expect the overall success rate of claims to have risen substantially in recent quarters (the average age of a concluded case is about nine months, so the vast majority of claims determined in recent quarters will have been issued after July 2013).

Yet, as the following chart shows, the overall success rate has fallen steadily in recent quarters, from 79% in 2013/14, to just 62% in the last quarter of 2014/15. Yesterday, I tweeted a hastily-constructed chart showing that, in Q1 of 2015/16, the overall success rate leapt to 75 per cent – how they must have cheered in the Ministry of Injustice!

However, on closer inspection of Tables 2.2 and 2.3 of the official stats, we can see that this figure was substantially inflated by unusually high proportions of equal pay claims being conciliated by Acas or withdrawn (80 per cent, compared to 40 per cent in Q1 of 2014/15), and of unfair dismissal claims being conciliated by Acas (69 per cent, compared to 32 per cent in Q1 of 2014/5). And, of course, outcome figures are given in terms of jurisdictional claims, not cases, so are easily skewed by one or two large multiple claimant cases. If we remove those two jurisdictions from the picture, then the overall success rate in Q1 of 2015/16 falls to 62 per cent – the same as in the previous quarter.

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Clearly, we’ll have to see (when the statistics are published in December) what happens in Q2 of 2015/16, but I think it’s fair to say that, at the time of writing, there remains no evidence whatsoever for the Grayling-Hancock theorem.

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

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

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

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

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

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

crap food

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

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

Rough justice: the intellectual incoherence of Michael Gove

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

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

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

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

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

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

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

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

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

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

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

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

 

The secret of Acas’s success

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

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

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

Nick Thomas-Symonds: I appreciate that.

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

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

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

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

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

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

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

 

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

 

 

 

ET fees: To deter, or not to deter, that is the question

Court 72 in the Royal Courts of Justice – where earlier this week three Court of Appeal judges spent two days hearing Unison’s appeal against the High Court’s dismissal of its two applications for judicial review of ET fees – is one of the more modern courtrooms to be found in the laughably camp, Gothic Revival edifice that sits on the Strand. Not quite a 21st century courtroom, perhaps, but certainly more 1960s than 1860s. And, to this lay observer, the appeal judges’ scrutiny of the appellant and respondent’s by now well-rehearsed arguments was a tad more modern than that offered by the reputedly clever but oh-so-out-of-touch-with-2015-reality Elias LJ in the High Court last October.

On Tuesday, when Karon Monaghan QC of Matrix Chambers presented Unison’s five grounds of appeal, all three judges had asked challenging questions that, to my mind, indicated a genuine desire to understand the real nature and impact of the fees regime. But things got a little more interesting on Wednesday, when David Barr QC of Temple Garden Chambers rose to present his defence of The Devil [Shurely ‘the Lord Chancellor’? Ed].

I think it’s fair to say that Mr Barr is not one of the Bar’s most flamboyant QCs, but it often sounded to me as if even he wasn’t convinced by the arguments that he frequently struggled to locate in the voluminous bundle. In the High Court, Susan Chan had at least sounded as if she believed the garbage spewing from her mouth. The three judges – Moore-Bick LJ, Davis LJ and Underhill LJ – certainly didn’t look terribly impressed, and the tone of their questioning became ever more mocking and disbelieving. Indeed, if these things were decided on the body language and facial expressions of the judges, then I’d say Unison have their appeal in the bag.

During a lengthy and turgid section on the Public Sector Equality Duty, Mr Barr seemed to be trying to bore the judges into submission, prompting Underhill LJ to swivel maniacally in his chair with the look of someone who’s just got a whiff of the dog poo on their shoe. But it was Mr Barr’s attempted defence of the appeal ground of ‘effectiveness’ that elicited the most mocking responses from the bench.

At one point, a clearly bemused Moore-Bick LJ asked Mr Barr what the ‘problem’ was that the fees were “trying to address”. And – seemingly forgetting the official Ministry line and, indeed, his own assertion that the aim of the fees was “not to deter claimants” – Mr Barr blurted out:

The problem was that there were increasing numbers of [ET] claims and the existing model was unsustainable.

As previously explained on this blog, this is claptrap and bunkum. Leaving aside the (admittedly many) claimants in a relatively small number of multiple claimant cases – as both Ms Chan and Mr Barr asserted we (and the judges) should do when analysing the massive drop in claims since July 2013 – the number of claims/cases was in fact falling towards a record low by 2011, long before the fees came into force. But it’s also at variance with the publicly stated objectives for the fees regime of ministers, as confirmed by the recent announcement of the long-promised review.

According to that announcement, the original objectives were:

  • to transfer some of the cost from the taxpayer to those who use the service, where they can afford to do so;
  • to encourage the use of alternative dispute resolution services, for example, Acas conciliation; and
  • to improve the efficiency and effectiveness of the tribunal.

Nothing about dealing with an “unsustainable” increase in claim numbers there. Indeed, the second and third objectives are just flannel, as would-be ET claimants need no encouragement from fees to use the mandatory early conciliation services of Acas, and there is simply no way fees could by themselves “improve the efficiency and effectiveness” of the tribunal system – other than by deterring two-thirds of the annual caseload (which, as already noted above, Mr Barr assured the judges was not the aim of the fees). As for transferring some of the cost to the taxpayer, in 2014-15 the Ministry’s net income from fees (after allowing for remission and administration costs) was a mere £4.3 million.

However, the evidently confused Mr Barr isn’t the first to let the cat out of the bag. For it was none less than the then Lord Chancellor, Chris Grayling – reputedly not the sharpest pencil in the box either – who revealed to the Yorkshire Post in November last year that, by introducing fees, the Coalition government was “trying to deal with a situation where it was too easy to go to a tribunal and where employers, often good employers, were easy prey for questionable claims”.

In short, despite Mr Barr’s polished assurance to the contrary, the aim was to deter claimants. In the High Court, Moses LJ, Elias LJ, Irwin J and Foskett J all failed to see this, even as unrepentant Tory ministers such as Matt Hancock were claiming ‘success’ for the fees on this very basis. And, indisputably, the officially unstated aim has been achieved, with knobs on. But as to whether any of this means the fantabulous Unison legal team will be downing celebratory drinks a month or two from now, I have learnt to my cost to reserve judgment.

IMG_3072

 

 

 

ET fees: Ministry of Injustice starts hunt for the X Factor

So, the Ministry of Injustice has finally decided to launch its long-promised review of the employment tribunal fees introduced in July 2013. This is the review, you might remember, that the Ministry was busy “finalising” the timing and scope of as long ago as June 2014. And it’s no doubt entirely coincidental that, next week, the Court of Appeal will hear Unison’s appeal against the High Court’s dismissal of their application for judicial review of the fees regime.

The wording of today’s announcement provides little cause to think that work-starved employment  lawyers should hold their breath until the outcome of the review. To my jaundiced eye, the stated terms of reference suggest the Ministry will be scouring all kinds of tribunal and economic data for any factor – other than the fees, obviously – that might possibly have contributed, even just a tiny bit, to the sharp decline in ET case numbers since July 2013. So the Ministry’s finest minds will be studying the “historic downward trend” in the number of ET claims – you’ll no doubt remember how much Vince Cable and other ministers made of that trend in late 2011 and 2012 – as well as the impact from “the improvement in the economy” and “changes to employment law”.

I’ll come back to those factors in a minute, but today also saw the scheduled publication of the latest set of quarterly ET statistics. These new figures remind us just how big the fall in case numbers has been since July 2013. And, perhaps more interestingly, especially to the crack employment team at top 100 law firm Hugh James, they suggest that exploited and mistreated workers, having ‘acclimatised’ to the fees in Q3 of 2014-15, somehow de-acclimatised in Q4. I’m looking forward to reading about this in the Law Society Gazettebut meanwhile here’s a chart.

ETquarterly110615

But back to those legal and economic factors (other than the introduction of hefty, upfront fees in July 2013) that – three, six or maybe 24 months from now – the Ministry will no doubt inform us wholly explain the fall in ET case numbers since July 2013. As is evident from the above chart, and as reported ad nauseam on this blog, there was a modest downward trend in ET case numbers in the quarters immediately prior to the introduction of fees, quite possibly linked to the steady improvement in the economy in recent years. From Q2 of 2012/13 to Q1 of 2013/14 – the last full quarter before fees – the number of new single claims/cases declined by 5%, from 13,407 to 12,727.

I imagine the Ministry boffins will find no reason to assume that that modest downward trend would not have continued, had fees not been introduced in July 2013. Indeed, they may well find reasons to argue that it would have accelerated. So, let’s assume that, over the next three quarters, single claims/cases declined by 6%. In that scenario, the number of such claims/cases would have fallen to 11,963 by Q4 of 2013/14, the last full quarter before the implementation of Acas early conciliation (from 6 April 2014). And – if that 6% rate of decline continued – by Q4 of 2014/15, the quarter for which the figures were published today, single claims/cases would have fallen to 11,010. Which, it’s worth noting, would have been a record low, unseen since the passing of the first Corn Laws in 1815.

Now, that implementation of Acas early conciliation (which became mandatory in May 2014) may well be what the Ministry had in mind when referring, in the review’s terms of reference, to the impact on ET case numbers of “changes in employment law”. Because the primary aim of Acas early conciliation was to reduce the number of claims/cases by a whopping 17% (that being the figure given in the final BIS impact assessment). So, from Q1 of 2014/15 onwards, we need to reduce the number of single claims/cases in my ‘no fees’, downward trend projection by 17%. And, if we do that, we get the following chart, in which the green columns represent the number of single claims/cases we might have expected to see in each quarter, had fees not been introduced, and the red columns represent the actual number of such claims/cases.

ETprojection110615

We can total up the differences between the red and green columns, and that gives a figure of 36,210 single claims/cases ‘lost’ to ET fees between 29 July 2013 and 31 March 2015, after allowing for the ‘historic downward trend’ in case numbers and the introduction of Acas early conciliation. And that figure continues to increase by some 5,000 every quarter (so is, at the time of writing, in excess of 40,000).

Now, I can’t think of any other significant (and relevant) change in employment law since July 2013, and I have difficulty imagining what “changes in users’ behaviour” might explain more than a tiny bit of the difference in the height of the green and red columns in recent quarters (there is no evidence to suggest that displacement of single claims/cases to the County Courts has been more than negligible). So I think I’ve just about done the Ministry’s job for it. For nothing. In an afternoon.

But perhaps the Ministry’s boffins will find some X Factor I have stupidly overlooked.