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March 10, 2014

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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.

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February 14, 2014

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Just how desperate is the MoJ to keep a lid on the impact of ET fees?

Last week, in rejecting the judicial review brought by UNISON, two High Court judges noted the “dramatic fall in [employment tribunal] claims” in September, the most recent month for which official figures are available, and made clear they would expect to hear the issue again should the Lord Chancellor’s “optimism” that the number of claims has since bounced back to more normal levels prove unfounded.  As I wrote elsewhere, the judges nailed Grayling’s genitals to the wall, and – if you’ll excuse the pun – a lot now hangs on the next set of quarterly statistics.

Which begs the question: why is the Ministry of Justice so resistant to issuing any more recent statistics, if they would remove the Lord Chancellor’s genitals from risk?  In recent weeks, the Ministry has declined to answer a straightforward parliamentary question on the matter, and has wriggled its way to not answering repeated Freedom of Information requests from me.

In those FoI requests, I asked both for basic figures on the number of ET claims in the months since September, and for the number of ET fee remission applications made and refused.  And in November, in response to a FoI request by Plumstead Law Centre, the Ministry had actually answered the latter question (FoI 86412).  So, after they had stonewalled my request, submitted in late December, for more recent figures, on 20 January I made a further request, using exactly the same wording as Plumstead Law Centre had in November.  And this is the reply I received on Wednesday:

Thank you for your email of 20th January 2014, in which you asked for the following information from the Ministry of Justice (MoJ):

“How many Employment Tribunal Fee Remission applications have been received by HMCTS since 1 July 2013, and how many of these applications were rejected?”

Your request has been handled under the Freedom of Information Act 2000 (FOIA).  I can confirm that the Ministry of Justice holds information that you have asked for.  However, because the cost of complying with your request would exceed the limit set by the Freedom of Information Act, on this occasion I’m afraid I will not be taking your request further.  In this letter I explain why that is.

The law allows us to decline to answer FOI requests when we estimate it would cost us more than £600 (equivalent to 3½ working days’ worth of work, calculated at £25 per hour) to identify, locate, extract, and then provide the information that has been asked for.  In this instance to provide you with the information we would be required to conduct a manual trawl of fee remission files to obtain the information requested. Each case file would take approximately 15-20 minutes to go through the file, to identify if that application was an application which had been re-submitted, the level of fee payable and the outcome/decision made.

You refer in the body of your email request that information was provided previously in FOI reference 86412.

The information provided in [that] response was taken from a manual count of the remission applications received and processed by the Employment Tribunal (‘ET’) and not taken from the supplier responsible for the maintenance of the fees and remission database (Jadu Ltd). Although this information was provided it should have been explained that this was a manual count and may not be an accurate number of the applications received.  This manual count is no longer being carried out by the ET, as the information is now recorded on the remission database.  To obtain the information requested requires interrogation of the employment tribunals’ fees and remission database, and quality assurance checks on that data to ensure it is accurate, reliable and in a form suitable for publication.

We are in the process of putting this system in place, but it is not currently available.  As explained in the response to your previous request we are not in a position to provide the information requested without manually trawling through all of the files where a remissions application has been received.  This process is estimated to cost more than the limit of £600.  

So, the number of fee remission applications made and decided is now recorded on an ET fees & remission database. But to extract from that database the number of ET fee remission applications made and decided to date would involve more than 3½ days of work? Really?  What is recorded on this ET fees & remission database, if not the number of ET fee remission applications made and decided?  How much is the Ministry paying Jadu Ltd. to provide and maintain this database?  Have I stumbled across yet another public sector IT fiasco?

Or is the Ministry just telling porkies to protect the Lord Chancellor’s genitals from High Court judges?

Postscript:  Since posting the above, I’ve come across this written answer, yesterday, to a parliamentary question by Ian Murray MP, seeking the number of ET fee remission applications made and determined:

Mr Vara: Data concerning outcomes of fee remission applications made, in employment tribunal cases and in other court and tribunal jurisdictions, are not routinely published.

HM Courts and Tribunals Service is working with partners to develop appropriate system reporting tools that will enable extraction, interrogation and subsequent quality assurance of data, including the data requested. Until those system reporting tools are developed, later this year, we will not be able to provide the data requested.

The Government has previously said that it plans to publish a Post Implementation Review, assessing and reporting on the impacts of fee-charging on the employment tribunals system.  The reporting tools we are developing will help us to undertake that work.

As in my previous answer, my officials are currently undertaking this work, and I will write to the hon.  Member as soon as I am able.

So, the Ministry of Justice is paying Jadu Ltd. to provide and maintain an ET fees & remission database that currently has no reporting tools, and therefore cannot provide any, er, data.  Someone should sort that out.  Because the Lord Chancellor really doesn’t like to see taxpayers’ money wasted on IT fat cats. [Are you sure that’s right? Ed]

Postscript 2: But what is this? Oh, it’s the website of Jadu Ltd., and their “exemplar case study” number 23: ET fee payments.  Yep, that’s the ET fees & remission database.  So, what does the Jadu “exemplar case study” tell us?

Well, somewhat superfluously, it tells us that “potentially massive savings” to the Ministry of Justice have “huge dependency” on Jadu delivering “a high quality IT system”, because – and I’m really not making this up – “media reaction to IT failure [could] significantly amplify the political sensitivity and national media reaction”.  Gosh, really?

Yes, really.  So, a “product owner was established at MoJ and at Jadu, both of whom worked closely to make key decisions”.  Well, that has to be better than only one of them working closely.  Whatever, they “communicated on a daily basis”, re-adjusting the priorities and “moving more important things up the list and less important things down the list”.  Phew, for a minute there I thought they were going to get it the wrong way round!

Not only that, but the closely-working product owners “established a Definition of Done”.  Note the capitals.  Not done, but Done.

After that, well, there was “change audit and versioning”, some “migration and roll back tests”, a few “sprint demos”, a dash of “code versioning”, some “user and usability tests”, and – finally – “iterating the delivered solution”.  This was essential, because “with many IT projects in the public sector failing to deliver value, it is essential that the Government pro-actively promotes better ways of working”.  You can say that again.

And all this versioning and “Test Driven Development” meant that the delivered ET fees & remission database is “of a very high standard”, with “216 different user journey routes”. Two hundred and sixteen!  Not only that, but it was “launched on 27 July, two days ahead of the deadline”.  And a “well rehearsed launch” led to “a very high quality service being delivered”.  Yes, yes, we got that.  Unfortunately, being of “a very high standard” seems not to include having the “reporting tools” to deliver basic data on ET fee remission applications.  Maybe no-one versioned the code for that.

But hey, Jadu “built what was needed, not what was agreed at the start”.  No surprise, then, that in November Jadu and it’s “exemplar 23” – that’s the Jadu ET fees & remission database to you and me – was shortlisted for an award.  Here’s a nice photo of the Jadu team off to the award dinner.

And all this ‘high quality’ for just … £1.5 million!  Well, that’s what the Jadu website says.  According to a Ministry of Justice press release, seemingly issued to coincide with the award dinner in November, it was £2 million.  But I guess only little people quibble about £500K.

Yes, the Lord Chancellor with an aversion to fat cats has handed as much as £2 million to Jadu, in return for a database that, according to the Ministry of Justice, can’t (yet) count basic data.  And, since you ask, Jadu are doing very nicely on it, thank you.  Indeed, thanks to the Ministry of Justice contract, Jadu has “been transformed, with significant growth and investment”, and has now “expanded into Australia, becoming a truly global player”.  This is what the Lord Chancellor had to say in November:

“Jadu is a perfect example of how small businesses in the private sector can help transform our justice system, driving innovation and better value for hardworking taxpayers – and it’s something I want to see much more of.”

But the last word has to go to Suraj Kika, founder and chief executive of Jadu and, seemingly, a budding philosopher:

Sometimes, to fix things – you need to break them first.

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January 24, 2014

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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.

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January 22, 2014

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Have the Government Made Another Mistake on ET Fees

In the Judicial Review brought by Fox and Partners in the Court of Session in Scotland in respect of employment tribunal fees, the Lord Chancellor conceded that Equal Pay claims were type A claims for the purposes of the Fees Order because they are complaints in relation to a breach of the sex equality clause  in terms of section 66 of the Equality Act 2010. This is despite the Fees Order saying they were Type B claims attracting the higher fee on issue and hearing.  It was suggested this was a drafting error and Ministers would want to amend the Fees Order.

I think I may have spotted a further drafting error.  I recently chaired a working party for the Employment Lawyers Association responding to the ACAS consultation on amending paragraphs 15 and 36 of the code of practice on Discipline and Grievance following the EAT decision in Toal and another v GB Oils Ltd UKEAT/0177/13DM.  If you are interested, you can find our response here http://www.elaweb.org.uk/sites/default/files/docs/ELA%20Response_ACAS%20consultation%20on%20Code_Discip_Griev_7Jan14%20%282%29.pdf

It is necessary for the Chair of the Association to approve any response before it is submitted.  He approved our response but asked me whether a fee was payable to bring a claim under Section 10 of the Employment Relations Act 1999, where an employer refuses to allow a worker to be accompanied by a companion of their choice at a grievance or disciplinary hearing.  I knew the answer to that was “yes” but I couldn’t answer the follow up question which was what was the level of fee.  I always assumed it was a type A claim.

I went to the fees order and was very surprised to see the claim was not listed in Table 2 of Schedule 2 as a type A claim, attracting the lower fee of £160 on issue and £230 for hearing.

This means that an worker wishing to bring a claim under S.10 of the Employment Relations Act 1999 must pay an issue fee of £250 and a hearing fee of £950.

Bearing in mind that the remedy for breach is compensation of an amount not exceeding 2 weeks pay and a weeks pay has the usual maximum of £450, a worker will have to spend £1200 to get back £900.  Of course, if they succeed they should have their fees paid by the losing party, but this is not automatically the case.

But it is worse, as a result of the decision in Toal  we now know that the word “compensation” in S.11 (3) of the Employment Relations Act 1999 requires the worker to prove they have suffered actual loss and nominal damages may be appropriate where no actual loss can be proven.

Type B cases are meant to be the more complex and costly claims.  I cannot believe the Government assessed S.10 claims are complex and so more costly.  Currently, who is going to speculate £1200 to win a maximum of £900 in compensation?  The right under S.10 becomes meaningless.

So is this a further example of the rushed nature of introducing the legislation on employment tribunal fees last July leading to errors in drafting?  Will the MoJ agree to remedy the error in the same way as they did with Equal Pay claims?

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January 6, 2014

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Tribunal fee remission: a very small fig leaf?

In response to widespread concern about the detrimental impact on access to justice of the employment tribunal fees regime introduced on 29 July last year, Coalition ministers have repeatedly claimed that low-income claimants will have their access to justice protected by the accompanying fee remission scheme.  In late October, for example, just days after the Ministry of Justice published provisional statistics indicating a sharp fall in the number of individual claims since July, the BIS employment relations minister, Jo Swinson, stated (in a letter to Maternity Action):

“The Government believes that all users of the tribunal system should make a contribution to the costs where they can do so, regardless of the type of claim.  Where claimants cannot afford the fees, the remission system ensures that nobody will be denied access to the tribunal.”

However, the  tribunal fee remission scheme, under which a claimant can receive full or partial exemption from the fee, is simply a revised version of the pre-existing County Court fee remission scheme, which in 2012 was condemned by Citizens Advice as “not fit for purpose” on account of its complexity and maladministration by HM Courts & Tribunals Service.  Under this revised scheme, any individual living in a household that has £3,000 or more in savings will not be entitled to any fee remission. This eligibility criterion applies to everyone, including those out of work.

And let’s not forget, the upfront fees introduced last July are substantial.  To issue and pursue a claim for unfair dismissal, for example, costs £1,200 (an issue fee of £250, and a hearing fee of £950).  Will summarily dismissed workers who have acted prudently to protect their family from sudden financial shocks by building up moderate savings of just £3,000 want to risk £1,200 of those savings on a tribunal claim for unfair dismissal, when there is no guarantee that the employer will repay the fees even if the claim is ‘successful’?  As recent government research has shown, half of the workers awarded compensation by a tribunal do not receive their award in full, and there’s no reason to think that those employers who fail to pay an award will be any more forthcoming when it comes to the repayment of hefty fees.

Furthermore, the upper income limits, above which claimants will not receive even partial remission of the fees, are set extremely low.  An analysis by economist Howard Reed, commissioned by the TUC, shows that “even among households where someone is earning just the national minimum wage, fewer than one in four of these workers will receive any [fee remission] and will have to pay the full fees”.  Reed’s analysis further suggests that just one in nine disabled workers, and one in 20 workers aged 50-60 (i.e. those most at risk of age discrimination) would qualify for full fee remission.

So, has the fee remission scheme protected access to an employment tribunal since the introduction of fees in July?  Last week, I stumbled across a Ministry of Justice response to a Freedom of Information request, published on-line by the Ministry in November (FoI 86412) but, as far as I can tell, not otherwise reported by whoever it was that submitted the request.  This states that, of “the 852 employment tribunal fee remission applications submitted nationally between 29 July and 11 November, 672 were rejected”.  That is a rejection rate of 79 per cent.

In other words, during the first three months of the fees regime, just 180 tribunal claimants received full or partial fee remission.  And we know that, in the same period, there were some 4,500 tribunal claims by individual workers (i.e. single claims; I have left multiple claims out of this analysis).  So, only 22 per cent of all single claimants applied for fee remission, and just four per cent of all single claimants received full or partial fee remission.  Yet as recently as September 2013, in its final Impact Assessment on the revised fee remission scheme, the Ministry of Justice suggested that 31 per cent of all claimants would be eligible for full (25 per cent) or partial (six per cent) fee remission.

Furthermore, the figure of 4,500 individual claims in the three-month period August to October is substantially lower than the average number of such claims prior to the introduction of fees.  But for the introduction of fees, we could have expected about 13,200 single claims in that period.  So a mere 1.4 per cent of the individual claimants we might have expected in the first three months of the fees regime received full or partial remission of the fees.

Whichever way you look at it, the fee remission scheme didn’t do a great deal to preserve access to justice in the first three months of the fees regime.  That said, the fee remission application rate may have risen in subsequent months, and the rejection rate may have fallen, as legal advisers became more familiar with both the fees regime and the fee remission scheme.

Well, maybe – time will tell.  But there’s certainly no room for the sort of ministerial complacency exhibited by Jo Swinson in October.  If the numbers don’t improve significantly, and soon, the fee remission scheme is going to look a very small fig leaf.

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December 16, 2013

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A tad more on ET claims since July

A few weeks ago, I emailed each of the regional ET offices, asking for the number of ET claims they had received in each month in 2013, including October.  At least some of my emails were passed to HMCTS, which unilaterally decided to treat them as a Freedom of Information request. And I have just received a partial FoI response from HMCTS: the data provided is for just seven ET regional offices, and does not include any figures for October. According to the covering letter from HMCTS, the figures for October are “not currently available”. To which I can only say: and I’m a banana.

Whatever, the data probably adds little if anything to the fantabulous, two-part analysis by Alex Lock on this blog of the data already published by the Ministry of Justice/HMCTS.  But I’m going to share it with you anyway, as I think there are a couple of interesting points to note.

*Claim & Multiple Claim Case* Klaxon!!! Yes, before we start, it is important to note that the data, set out in the following table, relates to ‘claims’ received by each ET regional office.  That is, the figures for each month are – as an estate agent would say – comprised of the number of single claims by individual claimants, plus the number of individual claimants included in multiple claim cases.  Which, as Alex Lock noted, is not the most meaningful measure of the ET system’s workload: the better (but still not ideal) measure is the number of single claims by individual claimants, plus the number of multiple claim cases.  This is important, because at the level of ET regions the number of ‘claims’ can easily be distorted by just one or two unusually large multiple claim cases (or the lack of same).  Got that?  OK, now we can move on to the table.

ET Office

Jan

Feb

Mar

Apr

May

Jun

 Average

Jul

Aug

Sep

 Actual – aver
Nottingham

721

433

332

572

323

329

452

1,400

218

73

335
Leeds

1,461

1,307

808

1,085

686

567

986

789

684

325

-1160
Huntingdon

193

171

173

200

230

168

189

296

109

53

-109
Reading

431

263

540

276

265

224

333

395

102

61

-441
Watford

320

295

357

272

446

586

379

780

102

81

-174
Bristol

221

174

194

179

183

158

185

317

66

32

-140
Southampton

195

210

272

236

190

239

224

248

218

73

-133
Total

2748

 

 

698 

-1822

To the table of data provided to me by HMCTS, I have added two columns: one giving the average monthly number of claims received in the six-month period January to June; and a final column showing the difference between the actual total number of claims received in the three-month period July to September, and the total number of claims that would have been received in that period had each month been an average month (based on the previous six months, January to June).  Whilst this fails to take account of seasonal variations, it does gives us a somewhat crude measure of the impact of fees in these seven regions, as it does at least even out any bulge of claims submitted earlier than they might have been in order to beat the introduction of fees on 29 July.

From this final column, we can see an apparent fall in the number of claims post-fees in six of the seven regions – the exception being Nottingham, which had a relatively large pre-fees bulge in July. Klaxon!!! Yes, as noted above, some or all of the Nottingham bulge could be due to one or more unusually large multiple claim cases. Overall, the seven regional offices received 1,822 fewer claims in the three-month period July to September than they would have done, had each of those months been an average month.

Perhaps more significantly, in September the number of claims was well below average, in all seven regions.  Indeed, the September total for the seven regions (698) is just 25 per cent of the average monthly total (2748).

We can also see that in three regions – Leeds, Reading and Southampton – there was in fact no evident pre-fees bulge.  Klaxon!!! OK, by now you know what the klaxon means.

If you are still awake at this point, you might have noticed that the August and September figures for Nottingham and Southampton are not just similar, but identical.  This seemed so unlikely that I asked HMCTS to double-check, and they have today assured me that the figures are correct.  Coincidence? It would seem so.

Different klaxon!!! Yes, enough with the klaxons already. As Alex Lock noted, the September (and perhaps even the August) figures might well need to be adjusted upwards, as they do not include any claims submitted but not counted as received by HMCTS because a decision on fee remission is still pending.

Which means I’ve probably just wasted two minutes of your time, and you’ll just have to come back and read a further devastating analysis by Alex once the October and November figures have been made public.

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December 9, 2013

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Overdue: a plan to tackle pregnancy & maternity discrimination

In 2005, three years before the global financial crisis of late 2008 and subsequent economic recession, a landmark study by the Equal Opportunities Commission found that half of all pregnant women suffered a related disadvantage at work, and that each year 30,000 were forced out of their job.  Eight years on, all the available evidence suggests that such pregnancy and maternity discrimination is now more common than ever before, and that as many as 60,000 women are pushed out of work each year.

Faced with mounting evidence of this proliferation of pregnancy and maternity discrimination, key government ministers have, until very recently, simply denied that there is a problem.  But in November, announcing £1 million of funding to enable the Equalities & Human Rights Commission (EHRC) to undertake a new study of the issue, ministers finally accepted that such unlawful discrimination “remains prevalent and more needs to be done to tackle it”.

Unfortunately, since 2010 the Coalition Government has made it even harder than it was in 2005 for women to tackle such discrimination.  Access to already overstretched sources of free employment advice, such as law centres and CABx, has been shrunk by the abolition of almost all civil legal aid – since April, three law centres have closed their doors for good.  The ‘questionnaire procedure’ in employment tribunal discrimination claims – which facilitates the revealing of crucial information held by the employer but otherwise not available to the claimant – is set to be abolished in April 2014.  And, perhaps most damagingly of all, since July 2013 those wishing to pursue a tribunal claim for pregnancy, maternity or other discrimination must pay up to £1,200 in upfront tribunal fees.

Bringing a tribunal claim is a daunting challenge at the best of times, and especially so for pregnant women and new mothers: the odds are stacked against them at a time when they need to protect their own and their baby’s health, and their income.  The great majority do not have access to the support and advice of a trade union, and simply cannot afford to pay for legal advice.  The introduction of tribunal fees of up to £1,200 only serves to further deter women with well-founded claims from taking legal action.

With pregnant women and new mothers facing the biggest living standards crisis in a generation, and the Government asserting that “we cannot deal with the economic challenges we face without properly using the talents of women in the workplace”, a new report by Maternity Action – Overdue: a plan of action to tackle pregnancy & maternity discrimination now – suggests it is time for ministers to translate their grand words into action.  The scale of the problem – and the impact both on individual women and their families, and on gender equality more widely – demands a firm response from government to ensure job security for all women during their pregnancy and maternity leave.

The announcement of £1 million additional funding to enable the EHRC to undertake a new study of the incidence of pregnancy and maternity discrimination is very welcome, as is the belated recognition by ministers of the scale and systemic nature of the problem.  But the EHRC study is unlikely to report for some time, quite possibly not until late 2014, leaving little if any time for meaningful government action before the general election in May 2015.  In any case, the Government could very easily act now to better protect the rights of pregnant women and mothers at work.

Perhaps most importantly, Maternity Action says the Government should scrap – or at least reduce to a nominal level – the upfront fees for discrimination and other employment tribunal claims introduced in July 2013.  There is now a broad consensus – including both the TUC and the CBI – that the Ministry of Justice has got it badly wrong on fees, and that, at the very least, the fees regime should be “redesigned to incentivise early resolution of disputes rather than maximise revenue” for the Ministry.  In the words of the CBI, claimant “fees should never be a barrier to justice”.

Secondly, the Government should abandon its planned abolition of the ‘questionnaire procedure’ in discrimination claims.  The proposed abolition will benefit no one, and will save no public money.

Thirdly, the Government should establish a process for publicly ‘naming and shaming’ employers found by a tribunal to have broken the law on pregnancy, maternity or other discrimination.

Fourthly, the Government should take speedy and robust action to improve compliance with employment tribunal awards, to ensure that women awarded financial compensation for pregnancy or maternity discrimination by a tribunal actually receive the money due to them.

Fifthly, the Government should match its funding of the new EHRC investigation into the extent of pregnancy and maternity discrimination with funding for an information campaign aimed improving the awareness of both workers and employers of the law on such discrimination, and an injection of funding into the specialist information and advice services that pregnant women and new mothers need to help them protect their rights at work.

And, last but not least, the Government should send out a strong message to dinosaur employers that economic recession and ‘hard times’ are no excuse to flout the law.

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