Category Archives: Tribunals

Standard

Posted by

Posted on

March 18, 2015

Posted under

Tribunals

Comments

2 Comments

ET fees income from single claimants (wonkish)

Last week’s publication by the Ministry of Injustice of the latest set of quarterly tribunal statistics, covering October to December 2014, was in many ways a damp squib that added little to what we already know about the impact of ET fees since July 2013. ET claim/case numbers continued to bobble along at about one-third the pre-fees level, and the claim outcome percentages – which might have enabled us to pour further scorn on the assertion of Matthew Hancock and others that only weak or vexatious claims have been deterred by the fees – were rendered meaningless by the striking out of one exceptionally large multiple claimant airline case involving some 243,000 claims.

The only real cause for excitement – yes, I’m that sad – was the inclusion, for the first time, of figures on applications for and grants of fee remission (or ‘fee waivers’, as ministers have taken to calling it). From the four tables in Annex D, covering the five quarters up to September 2014, we learnt that 95 per cent of remission grants to single claimants have been for full remission, and only five per cent for partial remission. And we learnt that, while 48 per cent of the single claimants from whom the issue fee was requested applied for remission, only 21 per cent of those from whom a hearing fee was requested did so.

With a bit of work, the figures also allow us to unpack – to some extent at least – the Ministry’s previous statement that gross annual fee income is running at about £12 million, of which some £3.2 million is “foregone in remission”. Because there is enough data spread over the four tables in Annex D to construct the following table for gross and net fee income from, and remission to, single claim/cases (but not multiple claimant cases, or EAT cases) over the 12-month period October 2013 to September 2014.

Issue fee (single claims/cases)
Gross income (£) Remission (£) Net fee income (£)
Type A 619,360 102,720 516,640
Type B 3,906,250 794,000 3,112,250
Total 4,525,610 896,720 3,628,890
Hearing fee (single claims/cases)
Gross income (£) Remission (£) Net fee income (£)
Type A 286,005 25,415 260,590
Type B 3,984,775 1,312,425 2,672,350
Total 4,270,780 1,337,840 2,932,940
Total (£) 8,796,390 2,234,560 6,561,830

(NB – To arrive at these figures, I assumed that the five per cent of claimants granted partial fee remission received an average remission of 50 per cent of the relevant fee.)

From this, we can see that single claimants in the ETs contribute £8.8 million (73 per cent) of the Ministry’s gross income of £12 million, and £6.56 million (75 per cent) of the Ministry’s net income of £8.8 million. And they benefit from £2.23 million (70 per cent) of the £3.2 million foregone in fee remission. The other 25 per cent (£2.2 million) of the Ministry’s net fee income comes from claimants in multiple claimant cases, and appellants to the EAT.

We can also see that, of that £8.8 million contribution to the Ministry’s gross fee income, £7.9 million (90 per cent) comes from claimants making Type B claims (e.g. discrimination, unfair dismissal). Similarly, of the total £2.23 million foregone in remission, all but £128,000 (5.7 per cent) is granted to those making Type B claims.

Well, I think that’s interesting, and if your name’s Michael Reed I suspect you will too. However, in terms of what might happen next, it’s probably much less significant than this tweet, posted on 11 March but which I only stumbled upon today:

Screen Shot 2015-03-18 at 16.04.46

Which conveys a somewhat different message to these and similar tweets by other Labour shadow ministers in recent months:

Screen Shot 2015-03-18 at 16.25.14

Screen Shot 2015-03-18 at 17.46.08

No wonder then, that Sadiq Khan got the following response from junior injustice minister Shailesh Vara when he raised the issue of tribunal and court fees in the House of Commons on Tuesday:

Screen Shot 2015-03-18 at 08.09.31

Followed shortly after by this response from the Lord of Injustice himself, Chris Grayling:

Screen Shot 2015-03-18 at 08.21.32

And then there’s former shadow attorney general Emily Thornberry, who yesterday re-iterated (during her Westminster Hall debate on equal pay) her proposal that equal pay claims be exempted from ET fees for five years – the clear implication being that she would be happy for fees to continue for other claims.

Sadly, working out what the three tweets above, and Emily Thornberry’s proposal, might tell us about the policy on ET fees of any future Labour government is beyond my tiny brain. So I’m going to bed.

Standard

Posted by

Posted on

March 3, 2015

Posted under

Tribunals

Comments

7 Comments

ET fees: how to find Sadiq Khan £20 million

With Labour shadow ministers and policy wonks seemingly too scared of their own shadows to find a place in their ‘better economic plan’ for their party’s employer-friendly policy pledge to at least substantially reduce the Coalition’s employment tribunal fees, now seems a good time to revisit my April 2014 attempt to set out a fiscally credible means of delivering on that pledge.

Since April 2014, we’ve learnt a fair bit about the level of fee income to the Ministry of Injustice, and the operational cost savings to the Ministry resulting from the steep decline in claims/cases since July 2013. Fee income (net of fee remission) is running at £8.8 million per year, and gross annual expenditure on the employment tribunal system has fallen by £14.4 million, from £86.7 million in 2012/13 (the last financial year before fees), to £76.3 million in 2013/14 (when fees were in force for eight months of the financial year), and £72.3 million in 2014/15. So, assuming for one moment that outright abolition of the fees regime would return the number of claims/cases to pre-fees levels, such abolition now appears to carry a price tag of some £23.2 million per year (£8.8m + £14.4m).

However, it’s very unlikely that outright abolition of the fees regime would return the number of claims/cases to 100% of its pre-fees level, for the simple reason that claim/case numbers had been in slow but steady decline for several years before the introduction of fees in July 2013, and that downward trend would most likely have continued had fees not been introduced. In other words, some – perhaps as much as 15 per cent – of that £14.4 million reduction in operational costs would have happened anyway. Furthermore, the figure of £14.4 includes efficiency savings made within the ET system unrelated to the impact of fees. So, as precision is not really available to us here, let’s just say that the actual price tag associated with outright abolition of the fees regime would be more like £20 million per year.

Now, many will say that £20 million is a piddling sum, and in one sense they’re right: it’s just 0.3 per cent of the Ministry’s overall annual budget of £6.8 billion. But there’s ample evidence that any incoming Chancellor and Justice Secretary would take a different view. Money is going to be very tight under the government elected on 7 May (or, the government undemocratically constructed by political horse-trading in the days following 7 May). In any case, it’s pretty clear that Labour’s policy pledge on fees does not amount to outright abolition (and all that the Liberal Democrats have said so far is that they’d conduct a review). So, it’s more realistic to assume that fees will remain in some form, and to set ourselves the task of constructing an alternative fees regime that would restore access to justice, while covering at least some of that £20 million.

To my mind, that implies no more than nominal fees for claimants. In April 2014, I suggested flat-rate issue and hearing fees of £50. And I argued that, with the advent of state-funded early conciliation of potential claims by Acas, there’s a perfectly sound case for employers having to pay similar fees to defend a claim that they have failed to resolve via Acas. If the number of single claims/cases rose to just 30,000 per year – almost double the current rate of 17,000 per year, but still well below the 54,700 in 2012-13 – such fees would generate £3 million per year in issue fees and, assuming 20 per cent of cases went to a hearing, a further £600,000 per year in hearing fees.

Alternatively, if the number of single claims/cases rose to 40,000 per year – more than twice the current rate of 17,000 per year, but still 27 per cent down on 2012-13 – such nominal issue and hearing fees would generate a total income of £4.8 million per year from single claims/cases.

In April 2014, I also suggested that each claimant in a multiple claimant case pay nominal, flat-rate but reduced issue and hearing fees of £25, and I see no good reason to resile from that view. If the number of such claimants increased to 60,000 per year – double the current rate of 28,000 per year, but still well below the 136,800 in 2012-13 – that would generate another £1.5 million per year in issue fees and, assuming (perhaps conservatively) that 50 per cent of such claims would go to a hearing, a further £750,000 in hearing fees. To that we can add £225,000 in issue and hearing fees (of £50 each) from the 3,000 defending employers, making some £2.5 million in total.

Yes, that amounts to only £7.3 million at most (assuming 40,000 single claims/cases). But those figures are based on scenarios in which claim/case numbers would rise from their current low level, but still remain well below their pre-fees level. In which case, the price tag associated with such a modest fees regime would be much less than the £20 million cited above. And, in the event that claim/case numbers rose to just below their 2012-13 level (say, 50,000 single claims, and 100,000 multiple claims in 5,000 multiple claimant cases), my nominal fees regime would then generate a total fee income of £10.1 million per year (which, you may remember, is what Ministry officials said in 2012 would have to be raised by any alternative regime to their own).

Of course, that would still leaves us £9.9 million short on our £20 million. But the final element of my April 2014 proposal was a ‘polluter pays’ penalty for those employers found by a tribunal to have breached the law – that is, those employers that create the need for an employment tribunal system. Each year, about 12 per cent of all claims are successful at a hearing or result in a default judgement in favour of the claimant. And, if claim/case numbers rose to just below their 2012-13 level, as described in the previous paragraph, there would be about 6,500 losing employers. Imposing a penalty of £1,000 on each of those losing employers – a hefty sum, for sure, but still less than the £1,200 some claimants have to pay in fees now – would generate an income of £6.5 million.

But your name is Sadiq Khan or Ed Balls, and you’re still fretting about another £3.4 million. So increase my ‘polluter pays’ penalty to £1,500. Why shouldn’t employers found by a tribunal to have acted unlawfully make such a contribution to the overall cost of the tribunal system? They would have had ample opportunity to settle the claim by that stage, including through early conciliation by Acas.

There are, of course, any number of ways in which my proposed nominal fees (plus ‘polluter pays’ penalty) regime could be tweaked, but the essential point is that it is entirely feasible to construct a regime based on very low level claimant fees that would nevertheless cover most if not all of the increase in operational costs associated with the inevitable increase in claim/case numbers.

 

 

Standard

Posted by

Posted on

February 2, 2015

Posted under

Tribunals

Comments

1 Comment

ET fees & ET judges: the regional winners and losers

Last week, as I was reading through the Hansard record of a House of Lords grand committee debate on the Small Business, Enterprise & Employment Bill, my eye was drawn to a comment made by shadow BIS minister Lord Young, during an exchange with BIS minister Baroness Neville-Rolfe on ET fees.

Surely there ought to be some concern about a situation where, in some regions, the number of employment tribunal [claims] has dropped by 80 per cent? Surely that is not an indication that 80 per cent of claims were vexatious. Does [the Minister] really not have any concern in this situation that fees are deterring people from bringing what could be completely fair and justifiable cases before an employment tribunal?

Shockingly but not surprisingly, as President Josiah Bartlet would say, the Minister turned out not to have any great concern, but Lord Young’s use of the qualifier “some regions” reminded me of a conversation I had a few weeks ago with an adviser to a shadow minister. The adviser said he had been told that, while claim/cases were sharply down in some ET regions, in other regions the employment judges were almost as busy as ever. I said that was news to me, and made a mental note to look into the matter. And the chart below is the result.

For this chart, I have focussed on single claims/cases, as that is (currently) the Ministry of Injustice’s favoured measure of ET receipts. And, for each ET region, I have charted the monthly number of new single claims/cases over the 12-month period October 2013 to September 2014, as a fraction of the average over the 12-month period July 2012 to June 2013. So, for example, where claims/cases are down by 60 per cent on the pre-fees average, they are plotted at 0.4 in the chart. All source data is from the Ministry’s quarterly tribunal statistics. There would be little point including the figures for all the claimants in multiple claimant cases in this exercise, and sadly the Ministry does not give a breakdown by region of the number of multiple claimant cases (which I would otherwise include).

Winners

I could be wrong (I often am), but to my mind the chart suggests either that the shadow minister’s adviser was misinformed, or that he or I somehow got the wrong end of the stick. For there is remarkably little variation between the ET regions, and all have followed much the same pattern over the period up to September 2014. Scotland has remained a little bit busier than the North East and Wales, it’s true, but not really busier enough to induce any work-shy Scottish ET judge to check out the Newcastle or Cardiff housing markets. Then again, the ET judges in Newcastle or Cardiff perhaps have a little more reason than most to be checking out the jobs market.

Interestingly, the chart suggests that, in March 2014, there was a bit of a rush to get claims issued before the coming into force of Acas early conciliation on 6 April, much as there was in July 2013 to beat fees.

The chart also confirms that Lord Young was somewhat over-egging it when he said that claims are down in “some regions” by 80 per cent. While Wales came very close, at the peak (or depth) of the Acas early conciliation ‘pause’ in May 2014, the truth is that no region has fallen quite that far (at least, not in terms of single claims/cases). However, by September 2014, single claims/cases were down by more than 60 per cent in all but one of the eight ET regions, the exception being Scotland, down a mere 59 per cent. And not even the nuttiest employer lobby group has ever claimed that, pre-fees, 60 per cent of all single claims were vexatious.

So, who are the real winners from the situation revealed by this chart? They are not the ET judges in Cardiff and Newcastle, but the dinosaur and rogue employers throughout England, Scotland and Wales who have breached the statutory employment rights of their workers with impunity. And the losers include not just the abused workers in question, but the great majority of law-abiding employers denied a level playing field. Just ask Tory MP Sir John Randall, who is closing his family business after being undercut by rivals lowering costs by employing staff on zero-hours contracts and “brutal” working conditions.

 

 

 

 

Standard

Posted by

Posted on

January 28, 2015

Posted under

Tribunals

Comments

Leave a comment

At remission control, the lights are on but nobody’s home

Previously on this blog, I have examined parts of a rather grand dismissal of concern about the impact of ET fees by the Parliamentary Under-Secretary of State for Justice, Shailesh Vara. Responding to a question by Diana Johnson MP, in which Ms Johnson noted the drop in ET sex discrimination claims of some 84 per cent since July 2013, Mr Vara said:

The situation is a lot more complex than the honourable Lady makes out. First and foremost, anyone who does not meet the financial criteria has a waiver and can go to court. Secondly, there have been a lot of pre-determinations by Acas. Employment is going up and there are fewer applications. There are a lot of factors and she does herself no credit by simplifying matters.

In this post I’m going to focus on the hapless junior minister’s reference to what he calls ‘a waiver’, but which most of us know as fee remission.

Now, as The Smiths sang, it is easy to laugh and to hate, but it takes guts to be gentle and kind. So let’s be gentle and kind to Mr Vara, and recognise that – terminology aside – what he says on fee remission is all of a piece with what other ministers have said on many occasions. Here, for example, is business secretary Vince Cable in November 2011, during the speech in which he announced the Coalition Government’s intention to exploit a legal power slipped through by Labour ministers in 2007, in order to shamelessly introduce ET fees without any parliamentary debate on the principle of doing so:

I want to make it very clear that for those with a genuine claim, fees will not be a barrier to justice. We will ensure that there is a remissions system for those who need help.

And, most recently, here is BIS minister Baroness Neville-Rolfe in the House of Lords earlier this week (during debate on the Small, Business, Enterprise & Employment Bill):

It is important to emphasise that the Government have been very careful to ensure that fee waivers are available for those people of limited means in order that they are not excluded from seeking redress through tribunals.

Unfortunately, anecdotal evidence from employment law practitioners, and the very limited amount of statistical data released by Mr Vara’s Ministry of Injustice to date, indicates that fee remission has done very little indeed to protect the access to justice of “those of limited means” since July 2013. As described elsewhere on this blog, until this week pretty much the only published data was that on grants of remission set out in the Ministry’s partial reply in October last year to a parliamentary question by shadow business secretary Chuka Umunna. Together with a bit more information on grants of remission included in the written evidence of a Ministry official in defence of UNISON’s second application for judicial review of the fees regime, that PQ reply told us that just 1,946 (10.4 per cent) of all 18,660 single claimants in the 11-month period 29 July 2013 to 30 June 2014 obtained some remission (full or partial) in relation to their case.

However, this week, in reply to a further parliamentary question by shadow BIS minister Ian Murray, the Ministry provided figures on grants of remission for July to December 2014. This tells us that there were 3,459 remission grants to single claimants in that period. However, we know from the breakdown given in the Ministry official’s evidence to the High Court that some 10 per cent of those grants will have been in relation to the appeal fee. And as a claimant granted remission for the appeal fee is also very likely to have received remission for the issue fee, those grants are double-counted. So we need to reduce the figure of 3,459 by 10 per cent, to 3,113. (Yes, the ’10 per cent’ may have gone up or down in recent months but, as there’s no way of telling from the Ministry’s reply, let’s just run with it).

I imagine Mr Vara would want us to dwell on the fact that, applying this 10 per cent reduction to the most recent quarter for which both the ET claim and remission grant figures are available – July to September 2014 – about 1,400 (33 per cent) of the 4,252 single claimants obtained full or partial fee remission. Which is a lot more respectable than the 10.4 per cent figure above.

To my mind, there are three possible explanations of this increased respectability: the number of remission applications has increased in recent months; or the Ministry’s decision-making has become less severe in recent months; or the extent of double-counting of claimants granted remission in respect of both the issue and the appeal fee has increased in recent months.

Indeed, we do know that the Ministry relaxed the evidence requirements for fee remission applications at the end of June 2014, and we can expect that to have increased the success rate, even if only slightly. And I would’t be surprised if the extent of double-counting has increased, but we won’t know until the Ministry provides a breakdown of remission grants to single claimants by issue fee and hearing fee.

Unfortunately, we also have no idea how many applications for fee remission were made, and how many were refused, in any of these time periods, because the Ministry of Injustice paid some £2m for a new ‘ET fees & remission’ database that, thanks to a lack of functional reporting tools, has yet to produce any reliable data, almost 18 months after it went live on 29 July 2013. (The above figures on remission grants are taken from a separate, finance system database). It seems we have to wait at least until publication of the next set of quarterly tribunal statistics, in early March, for the first figures on fee remission applications, grants, and refusals from that database.

dilbertproject

Whatever, the latest figures on remission grants are more meaningfully judged not against the actual number of claims in that period, but against the number of claims we might have expected to see, had fees not been introduced in July 2013. In my previous post on the other parts of Mr Vara’s reply to Diana Johnson, I set out two alternative (but ultimately very similar) projections for the number of single claims we might have expected to see in 2013/14.

Applying the most recent remission grant figures (for the six months July to December 2014) to the average of those two projections, we get a figure of 12.4 per cent of the single claimants we might have expected over a full year obtaining remission in relation to their case. Which is not so respectable, and certainly still well below the 31 per cent that the Ministry predicted in late 2013, in its final impact assessment of the (revised) remission scheme.

So, as with the rest of Mr Vara’s reply to Diana Johnson, the Parliamentary Under-Secretary of State for Justice does himself no credit by claiming that “anyone who [meets] the financial criteria has a waiver and can go to court”. The fee remission scheme appears to be protecting access to justice for only one in eight of the workers we could expect to be issuing a (single) tribunal claim, had fees not been introduced.

Which is entirely to be expected, given the complexity and narrowness of the eligibility criteria – the fee remission application form and explanatory notes run to 30 pages. Perhaps most significantly, any claimant in a household which has been prudent enough to build up modest savings of £3,000 or more will not qualify for any remission. So much for all those ministerial speeches about the need for people to take personal responsibility and put money aside for rainy days. If you and your partner have saved up £4,000 to help with the cost of the baby you’re soon to have, and then your employer unlawfully selects you for redundancy because you are pregnant, you’re probably not going to risk £1,200 of those precious savings pursuing a tribunal claim.

Finally, if you’re wondering why I haven’t included a nice little graph charting the number of remission grants in each month from July 2013 to December 2014, it’s because the figures for July to December given by the Ministry in its reply to Ian Murray are not compatible with the figures for the 11 months up to June 2014 given by the Ministry in its reply of 15 October to Chuka Umunna. The former include grants in multiple claimant cases (just 31 in six months), whereas the latter include all the claimants in multiple claimant cases (1,530 in 11 months), though we only know this from the Ministry official’s evidence to the High Court.

 

Standard

Posted by

Posted on

January 25, 2015

Posted under

Tribunals

Comments

3 Comments

The complex life of a Parliamentary Under-Secretary of State for Justice

Unlike his boss, the book-banner and serial law-breaker Chris Grayling, junior justice minister Shailesh Vara is rarely seen or heard in public. But every now and then he pops up in the House of Commons to deny that the dramatic decline in employment tribunal cases since July 2013 is more than tangentially related to the ET fees regime introduced by the recidivist Grayling in, er, July 2013. Most recently, on 16 December, during the ‘topical questions’ session immediately following oral justice questions, the Parliamentary Under-Secretary of State for Justice grandly swatted away a question from Labour MP Diana Johnson:

Diana Johnson: Since the Government introduced employment tribunal fees, there has been a drop of 84 per cent in the number of women who have been able to bring discrimination claims. Does the Minister accept that, because of the up-front fees of £1,200, many women are being denied justice under his Government?

Shailesh Vara: The situation is a lot more complex than the honourable Lady makes out. First and foremost, anyone who does not meet the financial criteria has a waiver and can go to court. Secondly, there have been a lot of pre-determinations by Acas. Employment is going up and there are fewer applications. There are a lot of factors and she does herself no credit by simplifying matters.

We might ask just how much credit the PUSS for Justice does himself by wrongly referring to fee remission as ‘a waiver’, to the tribunal as the ‘court’, to Acas early conciliation as ‘pre-determination by Acas’, and to claims/cases as ‘applications’. But that would be harsh. Since joining the Ministry on 7 October 2013, Mr Vara has had only 15 months in which to master his complex brief. And he’s only a solicitor.

So, let’s just concentrate on the “lot of factors” that make the situation so complex. But before we do so, let’s remind ourselves of the situation, which is that, immediately following the introduction of fees on 29 July 2013, the number of new ET cases (single claims/cases + multiple claimant cases) fell off a cliff, and in recent months has settled at about one-third of the pre-fees level. Here’s a chart with which you may be familiar (so, to keep your interest going to the next paragraph, I’ve changed both the colours and the chart style).

monthlyVara

So, what might be the “lot of factors” explaining the fall in ET case numbers shown in this chart?

Possible Factor #1: “There has been a lot of pre-determination by Acas”

It is indeed true that a system of early conciliation of potential ET claims by Acas came into force on 6 April 2014. And, as that system was intended to reduce the number of ET claims/cases, it is fair to say that the picture does get a bit complicated from 6 April 2014 onwards.

So, let’s just ignore the ‘new case’ figures for the months April to September 2014. That way, we can dispense with Mr Vara’s Possible Factor #1 entirely.

And, whilst we’re at it, let’s ignore the three months July to September 2013, which saw a big spike in July as claimants and claimant representatives lodged claims earlier than they would have done in order to beat the introduction of fees, followed by a compensatory cliff-like drop in August and September. Such an atypical period does not really help us with explaining the shape of the chart above.

That leaves us with the six-month period 1 October 2013 to 31 March 2014, otherwise known as Q3 and Q4 of 2013-14, to compare with earlier periods. And, as the number of multiple claimant cases is relatively very small, let’s also focus on single claims/cases. As noted elsewhere on this blog, this is in any case the measure of ET claims favoured by the Ministry of Injustice itself in the High Court, in the two unsuccessful applications for judicial review of the fees regime brought by trade union UNISON.

Possible Factor #2: “Employment is going up and there are fewer applications”

What Mr Vara was trying to say here, I think, is that the economy has been picking up in recent years, so the number of ET claims/cases was already in decline before the introduction of fees. And it’s certainly true that the number tends to rise during times of economic crisis, and decline when the economy is doing better. So this is a thesis not as patently daft as Mr Vara’s ‘pre-determination by Acas’.

Now, unemployment has been declining since October 2011, when it peaked at 2.7 million. So we might expect the number of ET cases to have been declining from about the same time. And – lo! – that is indeed what we find when we chart the annual number of ET single claims/cases.

annualVara

From this chart we can see that, having peaked in 2009-10 at the height of the economic turmoil and wave of redundancies that followed the global financial crisis of 2008, the number of ET single claims/cases declined slowly but steadily from 2010-11. By 2012-13 – the last full year before the introduction of fees – the number of single claims/cases was pretty much back to its pre-recession level. And it is at this point that we should pause to admire the masterful comic irony of Mr Vara’s Possible Factor #2.

In late 2011 and throughout 2012, ministers justified their plans to introduce hefty, upfront tribunal fees by stating – repeatedly and in cataclysmic terms – that the number of claims/cases was not just increasing, but going through the roof. Here, for example, is business secretary Vince Cable in November 2011: “Workplace disputes are increasingly being settled through tribunals [and] we are in danger of getting away from the principle that they should be the last resort, not the first option.”

In fact, even as Dr Cable uttered those words, the number of ET single claims/cases was going down, and it continued to decline as the Ministry of Injustice finalised and then implemented its fees regime in July 2013. And now that decline is used by Mr Vara and others to haughtily dismiss concern about the impact of the fees regime on access to justice. Yes, I’m lovin’ that irony.

But back to the chart above. In 2012-13, the number of single claims/cases was down 7.7 per cent on 2011-12. Clearly, we don’t know how many such claims/cases there would have been in 2013-14, had fees not been introduced one-third of the way through the financial year, but the blue column in the chart is a projection based on a further decline of 10 per cent on 2012-13. That would have brought the number of single claims/cases to its lowest level this century. So much for the “danger” imagined by Dr Cable in 2011: ministers could have ‘achieved’ a record low in ET case numbers without even going into the office.

And, if you don’t feel comfortable with me plucking a 10 per cent decline in case numbers out of thin air, the orange column is a projection for 2013-14 based on Quarter 1 of that year (April to June 2013). This still sneaks under 2005-06 to set a record low this century, despite equating to just a 6.9 per cent decline on 2012-13.

The final, green column is a projection based on the six-month period 1 October 2013 to 31 March 2014, scaled up to 12 months. Is it credible that the slow rate of decline evident in the red (and blue or orange) columns, which certainly appears to fit with Mr Vara’s Possible Factor #2, suddenly accelerated – just as fees were introduced in mid-2013 – so as to reduce the number of single claims/cases to a level less than half that in every other year this century?

To put it another way, does the PUSS for Justice do himself any credit by suggesting that the rate of decline in ET case numbers due to the slowly recovering economy increased from 2.3 per cent in 2011-12, to 7.7 per cent in 2012-13, then leapt to 61.3 per cent in the months immediately following the introduction of fees? Despite no corresponding great change in the rate of fall in unemployment? I do not think he does.

I suggest that Mr Vara would do himself more credit by accepting that the recovering economy is no more than a relatively minor factor in the dramatic fall in ET case numbers since July 2013, most likely accounting for less than one-tenth of the drop-off. And on we go to Mr Vara’s Possible Factor #3 and the other nine-tenths of the fall in ET case numbers since the introduction of fees.

Possible Factor #3: Er ….

Oh. Mr Vara didn’t say what Possible Factor #3 is. Let alone Possible Factors #4, #5 and #6. He just left Diana Johnson, the rest of the House of Commons, and us dangling with the suggestion that there are “lots” of Possible Factors. So, what might these other Possible Factors that Mr Vara chose not to mention be?

Possible Factor #3: “Lots of tribunal applications have gone to the Shire Courts”

Mr Vara might well have said this, had he bothered to suggest to Ms Johnson that the introduction of tribunal fees has displaced some claims/cases to the County Court, where the claimant fees are (currently) somewhat lower. Unfortunately, the official County Court statistics are so primitive that, short of someone conducting some in-depth research, there is no obvious way of knowing for sure how significant this displacement factor might be. But some people – not least the former President of the Employment Tribunals, David Latham – believe there has been at least some displacement due to fees.

However, we can at least estimate the maximum possible influence of such displacement on overall case numbers, because only a few types of tribunal claim can be brought in the County Court. In fact, of the 20 main jurisdictions identified by the Ministry of Injustice in its tribunal statistics, just four can be brought in the County Court: breach of contract; unlawful deductions from wages (UDW); equal pay; and breach of the national minimum wage. (The ever helpful Michael Reed of the Free Representation Unit advises me that, technically, a UDW claim cannot be brought in the County Court but, in practice, almost all such claims can instead be brought in the County Court as a breach of contract claim).

The Ministry’s tribunal statistics tell us that, in 2012-13, these four transferrable jurisdictions accounted for 32.3 per cent of all ET jurisdictional claims. (Note that here we are back not just to all claims, including all those in multiple claimant cases, but to all jurisdictional claims, of which there were 332,859 in 2012-13, due to each claim including an average of 1.7 jurisdictions). So, even if every such claim/case had been displaced to the County Court by fees, that would still only account for about one-third of the overall fall in ET case numbers.

Now 32.3 per cent is not an insignificant proportion – equal pay and unlawful deductions from wages are two of the most commonly claimed jurisdictions. But it is very unlikely indeed that anywhere near all of those jurisdictional claims would disappear off to the County Court, not least because many are brought in conjunction with other jurisdictional claims – such as unfair dismissal, and discrimination – that can only be brought in the tribunal. And, indeed, the Ministry’s tribunal statistics show that, in our six-month period October 2013 to March 2014, the four transferrable jurisdictions accounted for 29.8 per cent of all 48,283 jurisdictional claims. (We can even extend our period to September 2014, because the impact of Acas early conciliation is largely irrelevant here, and then we get a figure of 33.6 per cent).

Were a significant number of tribunal claims/cases disappearing off to the County Court to take advantage of the lower claimant fees there, we could expect the proportion of all jurisdictional claims accounted for by the four transferrable jurisdictions to have headed down towards zero. So, whilst the fact that it has remained constant does not prove that tribunal claims/cases are not being displaced to the County Court in significant numbers, it certainly doesn’t help anyone – such as a PUSS for Justice – wanting to suggest that such displacement is a significant factor in the dramatic fall in ET case numbers from July 2013 onwards.

Possible Factor #4: “Only weak or unfounded tribunal applications have been deterred by the fees”

Again, Mr Vara didn’t say this. But he might have done, because it’s a line of argument that’s been trotted out by BIS minister Matthew Hancock and his pals in the press. However, were it a well-founded line of argument, we could expect to see the proportion of successful claims/cases rising towards 100 per cent. And, as set out elsewhere on this blog, the Ministry’s tribunal statistics show it going down, not up, whichever way we measure ‘success’. So, we can dispense with Possible Factor #4.

Possible Factor #5: “Thanks to the Employer’s Charter launched by our fabulous Prime Minister in 2011, most bad employers disappeared from the UK economy in a puff of purple smoke early in the morning of 30 July 2013”

There’s not really anything to say here, other than: Why do we never hear from ministers about the Employer’s Charter, on which David Cameron really did spend hard-working taxpayer’s money in 2011?

And … well, that’s it. I really can’t think of any more Possible Factors. But maybe next time the PUSS for Justice leaps to his feet in the House of Commons, he will enlighten us further. Or, assuming he knows how to use a computer and access the interweb thingamajig, he could post a comment on this blog.

Meanwhile, in my next post I will examine Mr Vara’s somewhat convoluted assertion that “anyone who does not meet the financial criteria has a waiver and can go to court”.

 

 

 

 

 

 

Standard

Posted by

Posted on

January 4, 2015

Posted under

News, Tribunals

Comments

6 Comments

The penalty spot miss that should go to the Court of Appeal

Customarily, the dawn of a new year is a time for looking forward, to what the future might bring. But, employment law-wise, 2015 looks so bleak that I’m going to kick the Hard Labour year off by looking back, to the Enterprise & Regulatory Reform Act 2013 and its creation of a power for employment judges to impose a financial penalty of up to £5,000 on employers found to have breached a worker’s rights in a way that “has one or more aggravating features.”

First mooted in the January 2011 BIS consultation on ‘resolving workplace disputes’, the penalty regime was presented as a key plank of the Enterprise & Regulatory Reform Bill unveiled by Vince Cable in May 2012. However, unloved both by the employer bodies and by the trade unions, the then clause 13 was the subject of some debate at the Bill’s Commons Committee Stage in July, and also at Report Stage in October, by which time it had become clause 14 (it would go on to become section 16 of the 2013 Act).

During the latter debate, Jo Swinson, who had replaced fellow Liberal Democrat Norman Lamb as BIS employment relations minister just a few weeks previously, told MPs:

“When we first proposed the introduction of [the financial penalty regime], we had thought to make the imposition of the penalty automatic when there was a finding in favour of the claimant, but we listened to the concerns expressed by business during the resolving workplace disputes consultation last year and revised our proposals to give the tribunal discretion to decide when a penalty was appropriate. Good employers—those who try to do right by their employees—have nothing to fear, regardless of their size. A genuine mistake will not be grounds for the imposition of a penalty. However, those businesses which the tribunal considers have acted deliberately or maliciously will rightly, I believe, face the prospect of a financial penalty. They will no longer be able to gain a competitive advantage over businesses that abide by their obligations.

This is not some kind of revenue-raising scheme; it is about ensuring that the right incentive structure is in place by creating a further penalty for businesses that deliberately flout the law. That will incentivise the right kind of behaviour. That will be fairer on the vast majority of businesses that are good employers and that should not lose out to those employers that gain some kind of advantage by treating their employees badly.

Although they make up a small portion, there are clearly too many employers who do not comply properly with their obligations. I think that it is quite right that we send a clear signal and make it clear that those employers can expect to face a bigger consequence at a tribunal than those well-intentioned employers who try to do the right thing but fall foul of the law because of an error—after all, we are all human.”

We are indeed – even those of us who are government ministers prone to make grandiose claims for their draft legislation. And it is fortunate for Ms Swinson and her Coalition colleagues in HM Treasury that section 16 of the 2013 Act was not ‘some kind of revenue-raising scheme’. Because, in reply to a written question by shadow BIS minister Ian Murray, Ms Swinson has just revealed that the number of financial penalties imposed since the regime came into force on 6 April 2014 is … none.

Yep, nine months, and not a single section 16 penalty. Nada. Zip. Rien.

Which could be good news, of course. Maybe the financial penalty regime has so incentivised the right kind of behaviour that there are no longer any businesses deliberately flouting the law to gain some kind of advantage over their law-abiding competitors. Rejoice!

However, I doubt even Ms Swinson would claim that is what has happened. I imagine the Minister might try to suggest that the fault lies with the employment judiciary, for failing to take up the tool so cleverly crafted for them by Vince Cable, Ed Davey and Norman Lamb. But it seems unlikely that a judiciary so often criticised (mostly by employer bodies) for an alleged lack of consistency would have acted quite so … well, consistently.

A far more likely explanation, it seems to me, is that the hefty, upfront tribunal fees introduced by the Ministry of Injustice in July 2013 have eradicated exactly the kind of tribunal claim that Cable, Davey and Lamb evidently had in mind when they came up with the section 16 penalty regime: a relatively low value claim (because the claimant is or was low paid) against a deliberately exploitative employer. For why would a vulnerable, low paid worker subjected to ‘wage theft’ of a few hundred pounds gamble up to£390 on trying to extract the unpaid wages or holiday pay from their rogue (former) employer?

Which means that the deliberately exploitative employers supposedly targeted by section 16 of the 2013 Act are able to break the law with near impunity. And that is something that really ought to be of concern not just to Dr Cable and Ms Swinson, but to the Court of Appeal when it hears UNISON’s appeal against the High Court’s dismissal of its two applications for judicial review of the fees regime.

(As an afterthought, it is worth noting that, during those two Commons debates in July and October 2012, Norman Lamb and then Jo Swinson firmly resisted amendments tabled by shadow BIS ministers that would have reworked the unloved s16 penalty regime to focus it on those employers who fail to pay a tribunal award. Having belatedly seen the light on that long-standing issue, Ms Swinson has sought to make amends by including provisions to establish a parallel penalty regime to exactly that effect in the Small Business, Enterprise & Employment Bill, currently in the House of Lords.)

 

Standard

Posted by

Posted on

December 28, 2014

Posted under

Tribunals

Comments

5 Comments

ET fees: High farce in the High Court

In the days immediately following the High Court’s dismissal, on 17 December, of UNISON’s second application for judicial review of the ET fees regime, I was too busy eating humble pie and shouting “The law is an ass!” at anyone looking vaguely lawyer-like to sit down and bash out a blog. And, in any case, folk such as Kerry Underwood and James Medhurst were doing a fine job of pointing out the High Court Emperor’s lack of legal clothing. So I thought I’d keep schtum and let my irritation subside over the Yuletide break.

But, far from subsiding, over the past ten days my frustration and disappointment has solidified into a certainty that the UNISON legal team did not fail to convince Elias LJ and Foskett J of the detrimental impact of ET fees on workers’ access to justice. The learned judges simply bottled it.

The giveaway lines are by Elias LJ in paragraph 60 of the judgment, and Foskett J in paragraph 96. Elias LJ says:

“The [MoJ statistics on tribunal claims] demonstrate incontrovertibly that the fees have had a marked effect on the willingness of workers to bring a claim” and “I suspect that there may well be cases where genuinely pressing claims on a worker’s income will leave too little available to fund litigation.”

And Foskett J says:

“The effect of the new regime has been dramatic … so dramatic that the intuitive response is that many workers with legitimate matters to raise before an ET must now be deterred from doing so because of the fees that will be demanded of them before any such claim can be advanced. For my part, I would anticipate that if the [MoJ] statistics … were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an ET through lack of funds which would not have been the case before the new regime was set in place.”

In short, the learned judges fully accept the contention at the heart of UNISON’s application for judicial review: that the hefty fees make it exceptionally difficult for a significant number of potential applicants to bring a claim (by consensus the legal test on effectiveness). But they then swerve away from the obvious next step – allowing the application – by pointing out that, as UNISON’s application was not brought on behalf of any individual workers, the Court had not seen any actual evidence of this.

Well, yes. But a jury can justly convict a defendant of murder without having witnessed the fatal stabbing. And a parent dashing from the kitchen to the sitting room, in which his children have been noisily pillow-fighting, can justly conclude that it was his offsprings’ careless exuberance that produced both the sound of shattering glass that induced his frantic dash, and the shattered fragments of glass now littering the sitting room carpet – even if his offspring contend that it was not their fault.

High Court judges are not stupid (or so I am assured by people who are definitely not stupid). So Elias LJ and Foskett J must have known, when drafting their judgment, that what they were implicitly asking of UNISON is nigh on impossible. The jury in a murder trial cannot be transported back in time to the scene and moment of the crime, and a parent cannot be everywhere at once. Equally, even if the hard-working UNISON legal team had been able to find ten, 20 or even 100 potential ET claimants who were deterred by the fees – a difficult enough task in itself – how could it be proven that this was the reason the workers had not pursued a claim?

In court, the judges would not want simply to take each such assertion at face value. And the Lord Chancellor’s counsel would no doubt seek to challenge the merit of each potential claimant’s claim, and to ask why, for example, the potential claimant and her husband had not downsized from their three-bedroomed house in order to fund a claim for unlawful, pregnancy-related dismissal. After all, they would surely only need two bedrooms, even after the birth of their child.

So, let’s assume that the trojans in the UNISON legal team had somehow unearthed the cases of 20 potential but deterred claimants to highlight before the High Court, and that the Lord Chancellor’s counsel had managed to knock out ten of them. By any standards, that would still have been some achievement on the part of the UNISON team. But what would those ten remaining cases have added to the evidence before the learned judges?

The answer is: nothing. It could still have been argued that the ten cases do not amount to a significant number, when set against the overall number of tribunal claims – all ten could just be cherry-picked outriders. And Elias LJ and Foskett J would not have been present when the workers made the decision not to proceed.  So they could just as easily have dismissed the application with the throw-away line that, should UNISON be able to come up with evidence of a more significant number of potential but deterred claimants, “the Lord Chancellor would doubtless feel obliged to address it.” To which one can only say: and pigs might fly. After all, that’s just what the High Court said when dismissing UNISON’s first application for judicial review, in February.

All of which leaves me thinking that, in this case at least, the law really has been an ass. Elias LJ and Foskett J know as well as anyone – including the hitherto emu-like BIS employment relations minister, Jo Swinson – that the fees regime introduced in July 2013 has drastically narrowed workers’ access to justice, to the benefit of dinosaur and rogue employers. But – for whatever reason – the learned judges were not prepared to say so by allowing UNISON’s application, and so embarrass the Lord Chancellor.

The three of us (apart from a handful of court correspondents) who were in Court 2 of the Royal Courts of Justice on 17 December know this to be true. Maybe Elias LJ delivers all of his judgments near inaudibly in less than five seconds before scuttling out of the courtroom (after his abrupt departure, we had to ask clearly bemused court officials what he had said). For my part, I am convinced that what I witnessed that day is a very clever man deeply ashamed of his unprincipled and rather silly handiwork.

IMG_2607

 

 

 

 

 

 

Standard

Posted by

Posted on

December 15, 2014

Posted under

Tribunals

Comments

2 Comments

ET fees: We have to stop chasing unicorns in Fiscal La La Land

Last Friday, and over the weekend, I took the rare step of publicly disagreeing – via Twitter – with a leading #ukemplaw practitioner. It’s not the first time I have been so impertinent, but I do try not to do it too often. Well, I like to feel safe when I walk down the street.

Camilla Palmer, formerly of Leigh Day and now of YESS, had posted an on-point blog post in response to the latest set of quarterly ET statistics. After noting that “we already have an increasingly insecure labour market with zero-hours contracts, pay freezes and huge inequalities” and that “employers will become increasingly complacent about obeying employment laws when previously they would have done so for fear of ending up in a tribunal,” Camilla concluded “what use are employment rights without remedies?”

What use indeed. As predicted by many, the ET fees regime introduced in July 2013 has proven to be a fabulous gift to dinosaur and rogue employers, who can now mistreat and exploit low paid workers with near impunity. Camilla and I agree that remedying this is the single most important employment relations policy issue for the next government. But I had to disagree with Camilla’s assertion that “there is no indication from any party that fees will be changed [after May 2015].”

In fact, both Labour and the Liberal Democrats have indicated clearly that they would change the fees regime, should the electorate give them the chance to do so. In September, shadow business secretary Chuka Umunna became the first shadow minister to spell out the policy agreed a few weeks earlier by the party’s National Policy Forum: under a Labour government, the current fees regime would be scrapped and replaced by one ensuring that “affordability” is not a barrier to justice.

At the very least, that implies a substantial reduction in the level of claimant fees – quite possibly to a nominal level. And, at their party conference in October, the Liberal Democrats adopted a policy paper noting that the “high level of tribunal fees presents too much of a barrier” to justice – a mind-boggling statement suggesting the Liberal Democrats think it OK to have some barrier to justice, just not too much. The policy paper commits the party to a review of the fees regime, with a view to lowering the level of the fees, if re-elected to government in May. (Yes, I know).

However, to Camilla and many others – including the TUC – that is not sufficient. They want outright abolition of the fees regime, and will not brook arguing for anything less. To my mind, that is an honourable position. But it’s also chasing a unicorn in what FlipChartRick calls Fiscal La La Land. (And it’s worth noting that, according to Marxist economist and cook Chris Dillow, “four-fifths of  macroeconomists agree with Rick.”)

There are two, very simple reasons why outright abolition will simply not happen, whoever’s installed in government in May. The first is that the CBI and other employer lobby groups would not swallow outright abolition. And, if you doubt the influence of such groups, note how Chuka Umunna and Rachel Reeves have, in the face of CBI protest, been energetically rowing back on Ed Miliband’s pathetically modest conference pledge to increase the NMW rate to at least £8 per hour by 2020.

The second reason is money. It is now clear that outright abolition of the fees regime would cost new ministers at least £12 million, and possibly as much as £35 million, per year in lost fee income and lost operational cost savings from the dramatic fall in cases, which would presumably reverse. (For an explanation of why the price tag ranges from £12m to £35m, see here).

Now, £12 million per year is undeniably a piddling sum, when set against overall government expenditure. But with the spending plans of all three main parties so tight that many are predicting the bankruptcy of local authorities and even police forces soon after May 2015 if something does not give, it’s £12 million per year that newly-installed justice ministers would either have to find from somewhere else – the legal aid budget? – or replace with income from an alternative fees regime, perhaps based on nominal claimant and respondent fees, that does not significantly impede access to justice. No new Chancellor of the Exchequer is going to say ‘oh, no worries, here’s an extra £60 million for the next five years, I’ll find a way to cover it eventually, maybe by tackling corporation tax avoidance.’

Which presents those of us who want to see the restoration of workers’ access to justice with a stark but simple choice. We can continue to chase unicorns in Fiscal La La Land, and leave the inevitable creation of that alternative fees regime to the politicians and their influential friends in the corporate world (who will not want respondent fees, for example). Or we can accept the reality of public spending from May 2015 to at least 2020, and try to shape that alternative fees regime ourselves.

That said, I count myself among what Camilla pessimistically describes as “the few holding their breath” for the judgment in UNISON’s (second) JR of the fees regime. Should that go UNISON’s way, as I believe it will, even BIS employment relations minister Jo Swinson might now be willing to pitch in against the Ministry of Injustice in terms of shaping the current government’s response. At the weekend, Ms Swinson finally broke her astonishing 13-month public silence on the impact of the fees regime by revealing to the Independent that she has written to justice minister Shailesh Vara, demanding that the Ministry’s long-promised post-implementation review of the fees regime be conducted “without further delay, particularly given the alarming drop in sex discrimination claims.”

I know that my regular readers – hello Mum! hello Dad! – will be feeling a little disgruntled at the lack of charts in this post, so here is one showing that alarming drop in sex discrimination claims.

sexdisc

Postscript (16 December): Camilla’s colleagues at YESS clearly feel that I’ve been somewhat unfair to Camilla, and have posted this riposte, which I urge you to read. I can only say that I’m not questioning anyone’s integrity or commitment to the cause of protecting workers’ access to justice.

Standard

Posted by

Posted on

October 27, 2014

Posted under

Tribunals

Comments

4 Comments

ET fees: BIS gives ad hoc succour to Ministry of Injustice

Sitting in Court 3 of the Royal Courts of Justice last week, I was surprised to hear Susan Chan, counsel for the Lord Chancellor in his defence of UNISON’s judicial review of the ET fees regime introduced in July 2013, calling in aid a new, specially-produced statistical analysis of ET claims by the Department for Business, Innovation & Skills (BIS). For I’d always got the impression – not least from a series of tweets by the BIS employment relations minister, Jo Swinson – that BIS ministers regard ET fees and their impact on access to justice as a matter not for them, that their own hands are squeaky clean. But here was BIS, proactively aiding and abetting the Ministry of Injustice in the High Court.

This BIS statistical analysis was so new that it hadn’t been included in Ms Chan’s detailed grounds of defence, let alone published. Indeed, Ms Chan wasn’t even able to produce a copy of it in court for the judges and UNISON’s counsel, Karon Monaghan, to examine. However, Ms Chan gave a solemn undertaking that BIS would publish the analysis at the same time she submitted a copy to the Court.

And so it was that, just before 6pm on Friday evening, BIS published its ad hoc statistical analysis.  Based on findings from the Survey of Employment Tribunal Applications (SETA) 2013, published in June, the eight-page document sets out “further analysis based on the [SETA] survey dataset on the characteristics of claimants who would have been required to pay a fee at the time of their claim, if the current fee regime had been in force.”

Most of the document’s eight-pages are taken up with guff demonstrating the reliability of its few findings. If you think it’s about time you learnt about 95% confidence interval lower and upper bounds, then the BIS document is as good a place to start as any other. The first of these findings is that 75 per cent of the single claims in the SETA sample group would have attracted the higher Type B fees (a £250 issue fee, and a £950 hearing fee), and only 25 per cent the lower Type A fees (a £160 issue fee and a£230 hearing fee).  And the document goes on to give the following breakdown of cases in the sample group, by fee-type and gender.

Women Men
All cases 43% 57%
Type A fees 36% 64%
Type B fees 45% 55%

It’s not entirely clear to me how or why Ms Chan thinks these figures support her defence against UNISON’s case that the fees regime is indirectly discriminatory to a protected characteristic group such as women (one of the two grounds of UNISON’s claim for judicial review, the other being that the fees regime breaches the principle of ‘effectiveness’), but the overall 25/75 breakdown by fee-type is certainly a very interesting finding. Because it’s pretty much the exact opposite of the breakdown of cases by fee-type that the Ministry of Injustice projected in May 2012, in its final regulatory impact assessment of the fees regime. (Please note that my term ‘pretty much’ is not the same as ‘within a 95 per cent confidence interval’).

That Ministry of Injustice projection – set out in paragraph 4.10 of the RIA, and based on the allocation of cases by HMCTS into short, standard and open tracks – was that 64 per cent of cases (i.e. single claims + the relatively small number of multiple claimant cases) would attract the lower Type A fees, and 36 per cent the higher Type B fees.

So who is right? If the Ministry was right with its 64/36 projection, then the BIS ad hoc statistical analysis, and its breakdown of claims by fee-type and gender, is quite possibly nowhere near as reliable as BIS claims. Indeed, it could well be a pile of pants. But if BIS is right with its 25/75 breakdown, then the Ministry misled Parliament (and everyone else) with its projection. Ms Chan’s job is now done, at least until the judicial review progresses to the Court of Appeal, but maybe now that BIS has made ET fees its issue too the previously elusive Ms Swinson can give us a few answers. At the very least, BIS should now offer an explanation of why it chose to overlook this glaring discrepancy when handing its findings over to the Ministry, and when publishing them in such unseemly haste on Friday evening.

And when she’s about it, perhaps Ms Swinson can also tell us when Autumn ends. In her detailed grounds of defence, Ms Chan informed Lord Justice Elias and Justice Foskett that the greatly anticipated review of the ET fees regime by the Ministry of Injustice (perhaps now with the help of BIS) will “take place this Autumn”. Maybe they operate to a different seasonal structure in government, but there are only 58 shopping days left until Christmas. Which in my house is not an autumnal event. And they haven’t even started the review yet.

Perhaps they are secretly hoping that Lord Justice Elias and Justice Foskett will save them the trouble.

 

Standard

Posted by

Posted on

October 16, 2014

Posted under

News, Tribunals

Comments

Leave a comment

Earth calling Remission Control … come in, Remission Control … is anyone there?

Back in January, I noted on this blog that the tribunal fees remission scheme was providing ministers with a very small fig leaf as they sought to fend off increasingly alarmed suggestions that the hefty employment tribunal fees introduced in July 2013 were blocking workers’ access to justice. And today we learned – from the Ministry of Justice’s reply to a written PQ by shadow business secretary Chuka Umunna – that just 3,913 ET claimants (a mere six per cent of all claimants) were granted fee remission between 29 July 2013 and 30 June 2014 [but see also Postscript, below].

As the super-brained and hyper-cool Michael Reed of the Free Representation Unit was first to point out – please note that Michael and I were separated at birth, but he had the more privileged upbringing – the Ministry’s reply raises a number of questions.

The first being, why did it take the Ministry three months to answer the PQ, which was tabled by Umunna on 15 July? It’s not as if the PQ was especially complicated. It simply asked how many ET fee remission applications have been made and granted since 29 July 2013, and at what administrative cost. You’d think a cost-cutting Justice Secretary like Chris Grayling would have made sure he had such data at his fingertips.

The second question – posed by my long lost twin in his blog post – is: why did grants of fee remission increase so substantially from March this year, despite the number of ET cases (and claims) continuing to plumb the depths? From just 144 in December 2013, and 114 in February 2014, grants of remission shot to 753 in March, and 754 in May. Did awareness of the fee remission scheme (and so the number of applications) suddenly increase? Or did HMCTS’s decision-making suddenly become less severe? We simply cannot say, because we don’t have the necessary data on fee remission applications.

And that takes us to a third question: why was the Ministry unable to say, in its reply to Umunna’s PQ, how many fee remission applications were made between 29 July 2013 and 30 June 2014?

The long answer to this question is set out in my multi-part post on this blog in February. In a nutshell, in 2013 the Ministry of Justice shelled out some £2m on a shiny new ET fees & remission database with, er, no reporting tools. That is, an ET fees & remission database incapable of producing any basic data such as the number of fee remission applications made. And, as well as pocketing £2m of hard-working taxpayers’ dosh, the company that delivered this duff database – Jadu Ltd – got nominated for an award. Did someone mention justice?

So perhaps the most shocking revelation of the Ministry’s reply to Umunna’s PQ is that, 15 months after Jadu’s £2m ET fees & remission database went live in late July 2013, those basic reporting tools still don’t exist (or, at least, have “not yet been assured to sufficient standards”). Who the **** in the Ministry is overseeing this project? Clearly not the same minister or official overseeing the legal aid budget.

And the last question is, how does Michael always get his blog post out first? Do they not have any actual work to do at the Free Representation Unit? You know, representing all those vulnerable workers subjected to wage theft by rogue employers in their tribunal claims. Oh, hang on …

Postscript (21 October): Today we learned, from the Lord Chancellor’s evidence to the judicial review of his ET fees regime in the High Court, a few details on remissions that the Ministry of Justice somehow managed to leave out of its reply to Chuka Umunna’s PQ. It seems that just 2,178 (56 per cent) of the 3,913 remissions granted between 29 July 2013 and 30 June 2014 were to individual (i.e. single) ET claimants – the other 1,735 remissions being to claimants in multiple claimant ET cases (1,530) and to applicants to the EAT (205). I’m somewhat surprised that so many remissions have been to claimants in multiple claimant cases, but let’s leave that point for another day. For we also learned that the figure of 2,178 remissions granted to single claimants includes 232 remissions of the hearing fee.

While we cannot be certain without seeing more detailed figures, it seems reasonable to assume that very few if any of the 232 claimants granted remission in relation to the hearing fee will not also have had remission for the issue fee. In other words, 232 those remissions were double counted in the total of 2,178 claimants. Which means only 1,946 (7.7 per cent) of all 25,284 single claimants obtained some remission (full or partial) in relation to their case.

Now, 7.7 per cent is a long, long way below the 31 per cent predicted by the Ministry of Justice in September 2013, in its final impact assessment of the remission scheme, even before we allow for the much greater fall in ET claim/case numbers than the Ministry anticipated. In 2012/13 there were 54,704 single claims, and it is against such figures that grants of remission should really be judged, as that is (roughly) the number of single claimants we could have expected in the 12 months up to June 2014 were it not for the deterrent effect of fees. That is, only 3.6 per cent of those who might have been expected to make an ET claim in the 12 months up to June 2014 had their access to justice protected by the fee remission scheme.

The ET fees remission scheme has so far been a very small fig leaf.