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

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

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

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

disability

sexorientation

race

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

AllDisc

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

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

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

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

age

pay

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

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

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

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

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

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

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

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

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

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

SexDisc

DisabilityDisc

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

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

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

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

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

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

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

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

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

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

The review will seek to:

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

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

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

disabilityratio

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

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

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

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

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

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

 

So, exactly how much does it cost to make an employment tribunal claim?

You might be wondering – no, I’m sure you’re wondering – how much it costs to make an employment tribunal claim these days. It’s a good question. And who better to answer it than Jenny Willott, the Liberal Democrat MP for Cardiff Central and current BIS employment relations minister?

Just a few weeks ago, in the House of Commons, the Minister rather testily insisted to MPs that “it does not cost women [who have been subject to pregnancy discrimination] more than £1,000 to go to a tribunal. It costs only £250 to start a claim, and most cases are finalised well before a hearing”.

Well, thank goodness for that!  We wouldn’t want excessive cost obstructing workers’ access to justice.

However, somewhat confusingly, last week the Minister wrote that it costs “on average £1,800 to present a claim at tribunal” for, say, pregnancy discrimination. It does?

Yes, it does. It says so in Annex A of the BIS final regulatory impact assessment on Acas early conciliation, quietly published by BIS last week.  This shows how the Minister’s £1,800 figure consists of three elements, each one calculated in 2012: there’s £714 for “time spent on case”, £23 for “travel & communication”, and a whopping £1,017 for “costs for advice & representation post ET1”. (Yes, I know. But who are we to question figures approved by the BIS employment relations minister?)

That comes to a total of £1,754, which BIS then rounds up to £1,800.  So, the Minister’s figure of £1,800 does not include anything for the hefty upfront tribunal fees introduced in July 2013.

Which means it costs, on average, £2,050 to issue and pursue a tribunal claim for pregnancy discrimination. Which, according to both Maternity Action and the equalities minister, Maria Miller, is a serious and growing problem.  And, where the case goes to a hearing, for which a fee of £950 is payable, that average cost rises to £3,000.

So now we know.  Thank you, Jenny.

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

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

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

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

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

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

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

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

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

Constructive Knowledge and Rubber Stamps

The court of appeal yesterday handed down judgment in Gallop v Newport City Council regarding the question of an employer’s constructive knowledge of disability. The Claimant was supported by the EHRC who were understandably pleased with the outcome. Credit should also go to the Bar Pro Bono Unit who supported in the EAT and in getting permission to appeal.

Mr Gallop was a technical officer  working for the local council. He had exhibited some signs of depression such as, stress, lack of sleep and appetite, tearfulness and difficulty in concentrating. Over the course of about 3 years, these symptoms continued and absences due to them occurred, he was referred to Occupational Health. The ET and EAT had decided that when the council’s occupational health providers had stated that Mr Gallop was not disabled in the course of three reports, the employer was entitled to rely on that to conclusively demonstrate that it did not have knowledge of the employee’s disability when it later turned out that he actually met the definition. The problem with the occupational health reports were that as they were described by Rimer LJ:

Their opinions amounted to no more than assertions of their view that the DDA did not apply to Mr Gallop, or that he was not ‘covered’ by it or words to that effect. No supporting reasoning was provided. As the opinions were those of doctors, not lawyers, one might expect them to have been focussed on whether, from the medical perspective, the three elements of section 1 [i.e. a mental or physical impairment which had a substantial adverse effect on his ability to carry out normal day-to-day activities] were or were not satisfied. Since, however, OH made no reference to such elements, neither Newport nor the ET could have had any idea whether OH considered (i) that Mr Gallop had no relevant physical or mental impairment at all; or (ii) that he did, but its adverse effect on his ability to carry out normal day-to-day duties was neither substantial nor long-term, or (iii) that he did, but it had no effect on his ability to carry out such duties. OH’s opinion was, with respect, worthless. For reasons indicated, Newport had to form its own judgment on whether Mr Gallop was or was not a disabled person; and OH’s views on that topic were of no assistance to them.

Had the EAT been right, the problems that would have been caused by the judgment fell into sharp relief in this case. An employer, deliberately or innocently could have provided inadequate information to a doctor to assess disability in the sense in the Equality Act (or DDA in this case) and then relied upon an inaccurate report to negative its knowledge. Both sides (and the court) in Gallop agreed that for constructive knowledge, it was knowledge of the facts which led to a person being disabled, not whether as a matter of law those facts amounted to a disability which was relevant. That being the case it was difficult to see how a bald statement that a person is not disabled got past facts which the employer already knew about from which they could reasonably known a person was disabled.

In giving permission to appeal, Elias LJ said

…it might be thought surprising if an employer could say we have received advice that an employee is not disabled and rely on that.   I am very curious to see what the outcome is!

It might not have come as much of a surprise therefore that Rimer LJ giving the only reasoned judgment concluded that:

…the employer must not forget that it is still he, the employer, who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the adviser’s opinion that he is not.