Will the Justice committee prove to be au fait with access to justice?

We should perhaps take encouragement from the fact that, on the same day it published the transcript of its oral evidence session on the impact of the Coalition’s disastrous employment tribunal fees, the Conservative-majority Justice Committee of MPs also published a scathing report calling on ministers to scrap the Coalition’s disastrous criminal court charge. However, even a quick reading of the transcript reveals deep levels of ignorance and prejudice on the part of some committee members that may yet prevent delivery of a double-whammy to everybody’s favourite justice secretary, Michael Gove.

In particular, several Conservative members of the Committee appear unable to shake off their irrational fear of the patently non-existent Vexatious Claim Ogre. “What is the solution for the employer facing a vexatious complaint? What is your solution to that particular issue, which affects lots of small businesses around the country?” demanded Philip ‘filibuster’ Davies, blithely ignoring a mountain of actual evidence, from the 2007 Gibbons review of employment tribunals – which concluded that “weak and vexatious cases make up only a small minority of tribunal claims” – to any number of past statements by the Federation of Small Businesses (FSB) that the number of such businesses affected by a tribunal claim, vexatious or otherwise, is actually very small indeed.

In October 2014, for example, in its written evidence to the Small Business, Enterprise & Employment Bill committee, the FSB stressed to MPs that “only 3 per cent of our members were summoned before an employment tribunal between 2004 and 2009”, and in its oral evidence to the committee it happily noted that “a very small percentage of our members are damaged by tribunals, which is good news”. Indeed, as noted previously on this blog, at the time Coalition ministers decided (in 2011) to introduce hefty upfront claimant fees, the average private sector employer risked facing an ET claim about once every 27 years. Now, it’s about once every century. Can our valiant entrepreneurs really not cope with such minuscule risk? Maybe they should just stay in bed.

And before anyone says “yes, but 2004-09 is a long time ago”, Mr Davies himself had gone back to the last century to look for data that might prove the existence of the Vexatious Claim Ogre. In what must have been a frustratingly short intervention for a man used to talking non-stop for 52 or even 90 minutes at a time, Mr Davies stated that “between 1999 and 2005, the success rates for discrimination cases at employment tribunals were 28% for sex discrimination, 15% for race discrimination cases and 29% for disability discrimination cases. To most people, that would indicate that quite a lot of vexatious [claims] were being dealt with by the employment tribunals.”

Fortunately, Sybille Raphael of Working Families was on hand to point out to Mr Davies that his figures “do not take into account the far bigger number of claims that are settled, either during the tribunal process or before the tribunal process. They would not be settled if there was no tribunal there.” Shantha David of Unison noted that, in his written evidence to the Committee, the current President of the Employment Tribunals, Brian Doyle, had indicated “that only a very small percentage of claims can be [readily] identified as weak or unmeritorious, and that we need to be a bit careful about the way in which we bandy around the term ‘vexatious’.” Furthermore, Ros Bragg of Maternity Action noted that “we see no evidence that fees are effective in removing weak or vexatious claims”, and Rebecca Hilsenrath of the EHRC agreed that “there is no evidence of the fees having an impact on vexatious claims.”

I suspect that Sybille, Shantha, Ros and Rebecca would be more likely to convince the Pope that God does not exist than to rid Mr Davies of his faith in the Vexatious Claim Ogre, but some of the other myths about fees propagated by Matt Hancock and his mates in the tabloid press took a good pasting during the evidence session. Front-line practitioners Kate Booth of Eaton Smith LLP, Stephen Cavalier of Thompsons solicitors, and Shantha David all confirmed there has been no significant displacement of ET claims (such as breach of contract claims) to the county courts. And, in what may well prove to be the killer evidence to the committee, Kate Booth – who acts for both employees and employers – laid to rest the Ministry of Injustice’s canard that fees would “encourage the use of alternative dispute resolution services, for example, Acas conciliation”:

I sit on both sides of the fence. When I advise an employer, why would they engage in early conciliation? You wait for the employee to pay a fee. Ultimately you want to call their bluff – are they prepared to put their money where their mouth is? – so you sit back and see whether they do it. There is absolutely no incentive to engage early, unless you know you are going to go down. Why would you?

Stephen Cavalier confirmed that “fees have had the opposite effect [to that intended by ministers] – employers sit on their hands and do not engage”, while Sybille Raphael told the committee that, in her experience, “employers [now] wait until the very end – until the hearing fee is paid, three weeks before the hearing – to engage in meaningful discussions, wasting everybody’s time and the tribunal’s resources.” And Shantha David noted that “the average clearance times for multiple [claimant] cases are actually longer than they used to be.”

On fee remission, Emma Wilkinson of Citizens Advice noted that “the complexity of the eligibility requirements is particularly harsh for vulnerable [CAB] clients,” while Sybille Raphael told the Committee that “in our view the fee remission system is very unfair. For instance, if you have just above £3,000 in savings – I believe that we want to encourage people, especially low-paid employees, to save – you cannot benefit from fee remission. We have terrible cases of women who were sacked the minute they told their employers that they were pregnant, but cannot bring a claim for unfair dismissal because there is no way that they can spend nearly half their savings on a highly uncertain employment tribunal claim – especially when we know that, even if they win, there is a 50% chance that the employer will not pay anything, so she would be £1,200 worse off for having dared to claim her rights.”

On the question of whether the cost of the employment tribunal (ET) system should be “moved away from the taxpayer on to those who can afford it”, Sally Brett of the TUC gave the committee members a quick lesson on the wider social and economic benefits of the system:

Often a division is made between taxpayers and users of the ET system, but all taxpayers are potentially users of the ET system, [which is] a very important backstop to ensure that basic rights such as the right to the minimum wage, rights to paid holiday, rights to time off and maternity leave, and rights not to be unfairly dismissed or discriminated against are effective.

Those rights bring important social and economic benefits for this country. They ensure that more people can participate in the labour market without facing unfair discrimination. They give vulnerable workers more job security and stability of income. If there is not that ultimate sanction that employers may face if they breach employment rights, it encourages rogue employers to flout the law, which undermines and puts at a competitive disadvantage businesses that are striving to meet the [statutory minimum] standards or to exceed them and use good practice.

Hopefully, such evidence will help steer the committee towards the only just outcome of its inquiry, even if some of its Conservative members would personally much prefer to accept the laughable oral evidence of James Potts of Peninsula Business Services. Despite having to concede to Andy McDonald MP that he is “not au fait with the particular nuances of the [fee remission] system”, Mr Potts stuck to the line first set out in his firm’s evidence-free written evidence to the committee, that up is down and down is up, and “there really is not an access to justice issue” with fees because “access to justice is through the remission system” – the system, that is, with which he is not au fait.

Thieving an idea from FT journalist and legal blogger David Allen Green (see link in first paragraph, above), I can only imagine the conversation went something like this:

Tory member of the Committee: “So, this inquiry is to give Michael some political cover for a retreat?”

Bob Neill (Committee chair): “That’s right.”

Tory member: “In which case, we need the pro-fees evidence from the employer lobby to be really crap.”

Bob Neill: “We do.”

Tory member: “Peninsula Business Services?”

Bob Neill: “Make the call.”

 

 

 

 

The Independent: It isn’t, are you?

Having spent three decades banging my head against the brick wall of government policy-making, and trying to persuade our famously independent press and media to pay just a teeny weeny bit of attention to important issues of social and legal injustice, it never fails to amaze me how easy it seems to be for businesses with no evident goal other than their own enrichment to get their name and the services they offer in the paper. Indeed, sometimes those businesses make it look so easy that I’m simply left wondering what it is that I’ve been doing wrong for 30 years.

Take the Manchester-based Peninsula Business Services, a “consultancy firm providing advice to companies primarily on employment law and health and safety.” This is a firm so deeply committed to justice and corporate social responsibility that, last month, it told the Justice committee of MPs that the employment tribunal fees introduced by Equality Dave and his minions in July 2013 have “improved access to justice for all.” Yes, really. Not only that, but the fees “have, in the main, improved the quality of the claims presented at tribunal.” Which – duh! – explains why the success rate has gone down.

And I suppose that, given such insightful analysis, we shouldn’t be surprised that it is Peninsula Business Services that newspapers of record such as The Independent turn to for comment at times of national crisis. Times of national crisis such as the departure of Zayn Malik from One Direction, the staging of the Rugby World Cup, and the existential challenge of – cue scary music – Black Friday. Woooooo.

“Black Friday: employers fear online shopping will spur productivity meltdown” screamed the headline in yesterday’s (online) Independent. Yes, productivity meltdown! And how did the Independent learn of this approaching business armageddon? Well, “almost 8,000 employers have called a leading employment law consultancy in the last three days after being overwhelmed by holiday requests for November 27, or Black Friday. Peninsula Business Services said that many employers feared office productivity would be hit by online shopping after most of these holiday requests had to be denied.”

Not only that but, according to Alan Price, Employment Law Director of Peninsula Business Services, “employers were right to feel concerned about holiday requests and internet usage” over Black Friday. “With the Internet being an integral tool in the working environment and with every employee having access to it, unauthorised conduct can spiral out of control and policing employees’ Internet usage can feel like an overwhelming task”. Mr Price urged employers to “make sure their HR policies are up to date by throwing shed-loads of money at Peninsula Business Services”. [Yes, I made that last bit up]

PBS Black Friday

And, it has to be said, 8,000 is quite a lot of worried employers. It’s certainly 7,300 more than the nearly 700 “anxious employers” that, according to The Independent, called Peninsula Business Services over the weekend before the start of the Rugby World Cup in late September. “It’s almost as though the Rugby World Cup has cast a spell over rugby fans, causing everyday life to stand still, consequently resulting in employees forgetting that they have an obligation to the company they work for,” said Alan Price, who urged overwhelmed employers to get “an implemented up-to-date policy regarding expected conduct during sporting events by throwing shed-loads of money at Peninsula Business Services.”

PBS RWC

And 8,000 – or 7,953 to be precise, as Peninsula are in the press release that, thanks to the obliging Personnel Today, we are able to read in full – is a lot more than the 220 calls that, according to the always on-point Independent, were made to Peninsula in March this year by “workers asking for compassionate leave following the news that Zayn Malik had quit One Direction.”

As ever, Peninsula’s Alan Price was on hand to tell the Independent‘s Jenn Selby that “it was a situation you just couldn’t make up. While I sympathise with One Direction fans, I hardly think this qualified as compassionate leave.” Clearly something of an expert on pop music as well as employment law, Mr Price went on to “draw comparisons between the event and that of the big parting of ways of Robbie Williams from Take That in 1996, where [Peninsula] again experienced a huge spike in calls from concerned bosses.”

Hang on, I thought the Zayn Malik-related calls were made to Peninsula by “workers asking for compassionate leave”, not their bosses. Pah, who cares about such details, this is a time of national crisis, employers are overwhelmed by people skiving, everyday life is at a stand still, and PRODUCTIVITY IS IN MELTDOWN.

PBS Zayn Malik

Are hairdressers really *that* bad at paying the NMW?

With the Workers’ Party – or is it the Party of Equality? – leaving no stone unturned in its titanic struggle to “end discrimination and finish the fight for equality in our country”, last month saw the Department for Business, Innovation & Workers’ Rights name & shame another 115 minimum wage (NMW) rogues. Well, another 113 NMW rogues, once you exclude the two businesses – London-based Danhouse Security and Scottish business C & R Tyres – the Department had already named & shamed for the very same breaches of the NMW, in November 2014 and February 2015 respectively.

How hard can it be to manage an Excel spreadsheet? Too hard for the mandarins at BIS, obviously.

The inclusion of Monsoon Accessorize for the retailer’s failure to pay an average of £72.68 to 1,438 of its employees predictably dominated press and media coverage, but otherwise the list of 113 was much like all previous rounds of naming & shaming in being comprised almost entirely of small fry – many of them very small fry indeed. Excluding Monsoon Accessorize, the average underpayment (and so financial penalty) was £2,537.65, and the average underpayment per worker just £1,124.53 (that is, less than the £1,200 that the Party of Equality thinks it is entirely reasonable to charge low-paid workers to pursue a tribunal claim for race, sex or other discrimination). And, excluding the 1,438 Monsoon Accessorize employees, NMW underpayments were recovered by HMRC for just 255 employees of the other 112 firms.

In 53 of all 113 cases, the total underpayment (and so financial penalty) was less than £1,000, and in all but 15 cases it was less than £5,000. In 77 of the 113 cases, just one worker was underpaid, and only in 13 cases were five or more workers underpaid by the employer. Lucky the Coalition government upped the maximum penalty to £20,000 per worker, eh?

And, as with previous rounds of naming & shaming, the list of 113 was dominated by local hairdressers & beauty salons (25); pubs, cafes and hotels (16); and second hand-car dealers (8). I know – not least because former BIS mandarin Bill Wells keeps telling me – that the NMW apprenticeship rates might be difficult for small hairdressing business owners to fully understand, but does that really explain HMRC’s apparent obsession with the sector? And when-oh-when are BIS going to start naming & shaming some of the 100+ social care employers that, back in April this year, then BIS minister Jo Swinson said HMRC were then investigating? (Yes, Bill, I know, there is absolutely no abuse of the NMW in the social care sector, the authors of all those reports saying the opposite are simply deluded).

So – not that Gem will notice, she’s far too busy fighting HR wars with her lightsaber at #CIPD15 – here’s an updated chart, showing the 398 NMW rogues named & shamed by BIS to date, by sector.

NMW Nov 15

New finding: 98% of #ukemplaw research is rubbish

Regular readers of this blog – hello Mum, hello Gem – will know that I have a bit of an allergy to PR masquerading as ‘research’, and am not averse to poking fun at the law firms, recruitment agencies and even charities unashamed to grab a media headline or two with an eye-catching but wholly bogus statistic. But today I came across an example of this disreputable genre with a comedic value that puts it in a class of its own.

“Shared parental leave: Most fathers in the UK aren’t taking up the chance” was the plain-speaking headline above an article by the evidently statistically illiterate Radhika Sanghani in today’s Telegraph online. As Ms Sanghani explains:

Just two per cent of British companies have seen a significant uptake of shared parental leave since the new law came into effect in April. Previously only mothers could take a year’s worth of maternity leave while fathers were entitled to two weeks, but now both parents can share up to 50 weeks of leave. The change in law was praised by parents in April when it came in but so far few have made use of it.

Out of 70 companies polled, only a handful said many of their employees had taken advantage of the new law, though 38 per cent said they’d seen interest and momentum was building.

Seventy employers! Out of 1.2 million. Who could possibly have put together such an unimpressively sized and no doubt randomly selected survey sample? Step forward ‘family friendly working’ consultancy My Family Care and law firm Hogan Lovells, who jointly conducted the ‘research study’ but, strangely, don’t appear to have yet seen any reason to put their research report (and its explanation of their methodology) on their websites. So we can only guess how their sample of 70 firms is representative of all “British companies”.

Meanwhile, the HR specialists at Personnel Today were taking a similar line on the, er, ‘research’. And, over at the Daily Mail, the ‘research’ was seen as sufficiently robust and revealing to go with the headline “New dads don’t want shared parental leave”. Because men not taking shared parental leave simply isn’t exciting enough for the Daily Mail. It has to be because they don’t want it. Well, why would they?

But we do at least have the Mail’s business reporter, Rosie Taylor, to thank for revealing the ‘research’ data from some of the 70 surveyed employers that we would no doubt see in the My Family Care and Hogan Lovells research report, if only they had thought to actually publish it. So we learn from Ms Taylor, for example, that Citi bank “which has 10,000 UK employees, saw 11 fathers apply for shared parental leave within the last six months, taking an average of 16 weeks off.” And professional services company Accenture said “22 employees out of a work force of 10,000 had asked for an average of between 18 to 20 weeks off under the scheme.”

And you have to agree: those figures are truly pathetic. Just 22 – and a paltry 11! – applications in six whole months. Out of 10,000 employees! What on earth were Vince Cable and Jo Swinson thinking, introducing such an unwanted scheme?

But … hang on. How many applications for shared parental leave could a company like Accenture expect to receive in a six-month period? Well, according to the Equality & Human Rights Commission, just under 500,000 working women give birth every year, and there are 14 million women in the UK labour force. So, assuming that half of Accenture’s 10,000 employees are female, the company could expect about 180 employees to go on maternity leave every year – or about 90 every six months.

Which means that, over the last six months – the first six months of the new scheme – about one in four (25%) of Accenture’s qualifying male employees took up their right to shared parental leave. Yet the Coalition Government’s own prediction was a take-up rate of just 2-8%. Jo Swinson would have given her right arm for a take-up rate of 25% within six months of the law coming into force. Far from ‘not wanting’ shared parental leave, men are practically fighting each other to take some.

Somehow, the crack researchers at My Family Care and Hogan Lovells failed to spot that they had stumbled upon a policy goldmine (yes, I’m joking). But it’s too late now. The Daily Mail has been briefed by the My Family Care and Hogan Lovells press officers, and it has spoken: MEN. DON’T. WANT. SHARED PARENTAL LEAVE.

Screen Shot 2015-10-22 at 20.25.26

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

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

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

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

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

The impact of fees on ET claim/case numbers

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

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

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

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

Monthly

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

UnfairDismissal

DisabilityDisc

RaceDisc

OrientationDisc

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

EqualPay

SexDisc

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

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

Annual

The number of claims/cases ‘lost’ to fees

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

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

Indeed. And that “very large number” is easily quantified, by comparing the actual number of single claims/cases against the number we could have expected, had fees not been introduced in July 2013. To do so, we simply need to generate projections allowing for (a) the “historic downward trend” in case numbers that began in 2010/11, but which ministers either failed to spot or ignored in 2012, when deciding to introduce fees; and (b) the introduction of Acas early conciliation, which was intended to bring about a 17 per cent reduction in the number of claims, in April/May 2014.

Clearly, that “historic downward trend” may not have continued at the same rate (or even at all) in recent quarters, and the actual impact of Acas early conciliation appears to have been more modest than intended – the combined impact of any remaining downward trend and the introduction of early conciliation has been an annual rate of decline of just 15.4%. So the following chart sets out two alternative projections (one low, one high) of single claim/case numbers.

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

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

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

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

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

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

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

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

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

Yet, as the following chart shows, far from rising, the overall success rate has fallen in each of the last five quarters, from 79% in 2013/14, to just 62% in the last quarter of 2014/15. In the first quarter of 2015/16 (April to June 2015), the figures for which were published last month, the overall success rate did leap to 75%. However, this figure is substantially inflated by unusually high proportions of (i) equal pay claims being conciliated by Acas or withdrawn (80%, compared to 40% in the same quarter in 2014/15); and (ii) unfair dismissal claims being conciliated by Acas (69%, compared to 32% in the same quarter in 2014/5). And, of course, outcome figures are given in terms of jurisdictional claims, not cases, so are easily skewed by one or two large multiple claimant cases. If we remove those two jurisdictions from the picture, then the overall success rate in the first quarter of 2015/16 falls to 62% – the same as in the previous quarter.

Outcomes 2010 on

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

NarrowOutcomes

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

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

Other considerations

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

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

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

Conclusion

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

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

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

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

 

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

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

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

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

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

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

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

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

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

SexDisc

DisabilityDisc

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NMWnamed