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

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

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

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

ETquarterly110615

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

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

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

ETprojection110615

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

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

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

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

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

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

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

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

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

monthlyVara

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

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

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

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

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

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

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

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

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

annualVara

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

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

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

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

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

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

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

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

Possible Factor #3: Er ….

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

New parlour game: hunt the ET fees review

For much of this year, whenever the justice-denying impact of the employment tribunal fees introduced by the Ministry of Justice in July 2013 has been raised in public with business secretary Vince Cable or BIS employment relations minister Jenny Willott (covering Jo Swinson’s maternity leave), they have shielded themselves from any criticism by suggesting that the fees regime is under review.

For example, at a conference of employment lawyers in April, just weeks after the release of the first full set of quarterly figures showing a dramatic fall in the number of cases, Jenny Willott reportedly deflected questions from the floor by stating that “the level of fees” will be one of several issues considered under a review of the fees regime.

And, in the House of Commons in mid-July, just two weeks before the first anniversary of the fees regime coming into force, Vince Cable responded to an intervention by Labour MP Debbie Abrahams, drawing attention to the drop-off in the number of cases in the months up to 31 March, by stating:

“Yes, I am aware of a substantial fall in numbers. There are several reasons, which we are currently investigating, one of which could be connected with fees. Another reason is that earlier legislation sought to introduce an arbitration mechanism through ACAS as a first port of call.” (Hansard, House of Commons, 16 July 2014, col. 909)

Let’s leave aside the fact that the system of early conciliation by Acas to which Dr Cable was referring did not come into force until 6 April, so played no part in the dramatic fall in tribunal cases in the six months up to 31 March, and focus on that phrase “we are currently investigating”. Not ‘we will consider as part of a review at some point in the future’, but “we are currently investigating”.

The MPs who listened to Dr Cable that day in July, and anyone who subsequently read the Hansard record of the debate, could be forgiven for concluding from this that the government (or, at least, that part of the government in which Dr Cable includes himself) has been ‘investigating’ the tribunal fees regime for at least the last three months.

Except that … it hasn’t. At least, not according to Jo Swinson, who returned from maternity leave to her role as BIS employment relations minister over the summer.

Asked on Twitter last Thursday to confirm whether she agrees with Liberal Democrat Policy Paper 120 – adopted at the party’s conference in Glasgow earlier in the week – when it states that the “high level of tribunal fees presents too much of a barrier” to justice, Ms Swinson dodged the question but volunteered that the “lead department on this is [the Ministry of Justice] not BIS so they will be launching the review [of the fees regime]”.

Er, they will be launching the review?

Yes. Asked to clarify whether her earlier tweet meant that the government’s review of the fees regime is in progress or has yet to start, on Friday Ms Swinson tweeted confirmation that the review has “yet to start”. And, asked to say when it might start, Ms Swinson declined to answer but suggested the question be directed to the Ministry of Justice.

So, contrary to the statement made by Dr Cable to the House of Commons in mid-July, no one in government is yet investigating the “substantial” fall in tribunal cases since July 2013 (at least, not in any meaningful sense). And this despite just about everyone outside government – including the CBI and the Federation of Small Businesses – having concluded that the dramatic fall in the number of cases is entirely due to the fees being set far too high.

Ministers at the Ministry of Justice may start ‘investigating’ these matters at some point in the future, but if they have a timetable for doing so they don’t appear to have shared it with the BIS employment relations minister.

Which begs the question: what the **** are they waiting for? It’s not as if there is that much to ‘investigate’. Fees came in, and the number of cases dropped off a cliff that no one in government saw coming. End of.

It’s perhaps worth adding that, according to the answer to a written question in the House of Lords given by justice minister Lord Faulks, the Ministry was “currently finalising arrangements for the timing and scope of the review” as long ago as 24 June. Almost four months have passed since then. What are they doing? It’s not as if they are being asked to rerun the Hutton Inquiry.

 

 

 

 

MoJ’s new line on ET fees as spurious as the old one

As if further proof were needed, the latest set of quarterly tribunal statistics – released by the Ministry of Justice on Thursday – confirm the dramatic impact of the employment tribunal (ET) fees introduced in July last year. For the third quarter in a row, the number of new ET cases is down by 65 per cent or more, compared to the same quarter a year ago. Over the nine months immediately prior to the introduction of fees, 44,000 employers had an ET case brought against them. But over the nine months up to June 2014, just 15,750 did.

As can be seen from the following chart, this is unquestionably a sudden and dramatic decline. Back in March 2013, the Department for Business, Innovation & Skills (BIS) noted that ET cases are “relatively rare”. They’re a lot rarer now.

Chart 1: Single claims/cases & multiple claimant cases (= total number of respondent employers), April 2012 to June 2014

casesSource: Table C1 of Annex C to Tribunal Statistics: April to June 2014, Ministry of Justice, September 2014.

Think of it this way: on average, each of the UK’s 1.21 million employers now faces an ET case just once every 58 years.

In the face of such evidence, the Ministry of Justice now seems to have abandoned its laughable initial line that this pattern is no more than a long-term downward trend. Conservative ministers such as Matt Hancock now proudly acknowledge the scale and suddenness of the decline, but seek to suggest it is no cause for concern as all the thousands of cases ‘lost’ to fees since July 2013 are simply vexatious or spurious claims that should not have been brought anyway.

Until the release of this week’s set of tribunal statistics, this was not an argument that was readily susceptible to disproof by analysis or chart, as that requires data on claim/case outcomes and – due to the time taken to process cases through the system – such outcome data lags at least two quarters behind that on new claims made. But the latest quarterly data – relating to the period April to June this year, so up to almost one year after the introduction of fees – allows us to start putting the new ministerial line to the test. For we can be reasonably confident that the great majority of the claims resolved in this quarter will have been issued after July 2013, not least because the dramatic fall in the number of cases has reduced the average time taken to resolve most types of claim.

If ministers are right, and fees have simply cut out all the vexatious and spurious claims, but have had no effect on access to justice by workers with meritorious claims, we would expect to see substantial shifts in the proportion of cases that are ultimately successful (whether at a hearing, by a default judgment, or through settlement), or unsuccessful. Indeed, we would expect successful claims to be heading towards 100 per cent, and unsuccessful claims towards zero.

So, what does the this outcome data tell us? Well, the following chart compares outcomes in the period April to June 2014, to the same quarter a year ago (i.e. immediately prior to the introduction of fees), and to previous full years. And from this it is clear that the introduction of fees has had no significant impact on outcomes (at least, not yet). Whilst the proportion of successful claims has increased slightly since the same quarter a year ago, from 13 per cent to 17 per cent, it’s still no higher than in any full year since 2007-08. And the proportion of unsuccessful claims is down, but only marginally so. (Note that the only significant changes evident in the chart – those in the proportion of cases settled by Acas, and withdrawn – not only cancel each other out, but pre-date the introduction of fees in any case).

Chart 2: Outcomes of ET claims (singles & multiples).

outcomesSource: Table 2.3 in Tribunal Statistics: April to June 2014 (Tables), Ministry of Justice, September 2014.

In short, not only is there no evidence whatsoever to support the new ministerial line – hardly a unique occurrence under this evidence-averse government – but the only available evidence shows it to be a pile of pants.

I imagine that some in government (and elsewhere) will try to claim that it is still too early to tell. But that is a weak argument that will get ever weaker with the release of each new set of quarterly tribunal statistics.

Or, as Alice might have said, spuriouser and spuriouser.

Ministry spinning out of control on ET fees

While last month’s anniversary of the introduction of employment tribunal fees passed without the comment we might reasonably have expected from shadow ministers such as Sadiq Khan and Chuka Umunna, two articles in the Daily Mail and Sunday Express kept the #ukemplaw community busy debating which of the two is the worst thing ever written about the origin and impact of the fees regime.

Both articles are indeed wondrously dreadful, but their greater significance lies in what they tell us about the spin we can expect from the Ministry of Justice in the coming weeks, as it completes and announces the conclusions of its long-planned Post-Implementation Review (PIR) of the fees regime.

In the Daily Fail – under the headline “Hallelujah! The gravy train’s derailed: as workers are made to pay £1,200 fee, discrimination cases plunge by 75%” – Steve Doughty trilled that “the multi-billion pound industry built on vexatious discrimination claims against employers has virtually collapsed … with sex discrimination claims down 80% and race claims by 60%”. And “the spectacular decline follows a simple reform introduced by Justice Secretary Chris Grayling last summer – the charging of fees to workers who want to make a claim against their employer”.

Don’t you just love that ‘simple’, and the implication that only someone with the intellect of Chris Grayling could have come up with such a straightforward policy solution? Presumably, Doughty was still at journalism school in 2011, when the fees regime was in fact dreamt up by Grayling’s predecessor as Justice Secretary: the now much-lamented (by some) Kenneth Clarke.

“In the first six months of the new fees system”, Doughty continued, “the number of claims dropped from 109,425 to 20,678. The fall is a major boost for businesses, which were previously spending around £1.6 billion a year in defence costs. There were 191,000 employment claims in the financial year to March 2013”. And the article ended with two photos of unsuccessful ET claimant Stella English, who just happens to be female and blonde.

Meanwhile – under the headline “An end to abuse of the employment tribunal system” – Leo McKinstry informed readers of the Sunday Express that “a gigantic racket fuelled by whingeing trade unions, parasitical lawyers and money-grabbing litigants” has been “dramatically transformed by a reform introduced by Justice Secretary Chris Grayling, in a move distinguished by its simplicity”. Ah yes, the simplicity.

“At a stroke”, McKinstry continued, “the compensation gravy train has been sent into the buffers. Before Grayling’s reform, the flood of employment litigation was unceasing. In 1998, there were 80,000 [ET] cases, an annual total that had risen to over 200,000 in recent years. Yet in the first six months since fees were imposed the number of cases plummeted to 20,678, compared to 109,425 in the previous two quarters”. And, naturally, the article included a nice big photo of the female and blonde Stella English.

These stunning examples of journalistic garbage would be best ignored and quickly forgotten, were it not for their remarkably similar wording, their use of identically precise figures for the number of claims in six-month periods before and after the introduction of fees (109,425 and 20,678) that I cannot match up with any of the figures set out in the Ministry’s most recent statistical bulletin (see endnote), and their misplaced crediting of Chris Grayling.[i]

To my mind, these curious coincidences suggest the articles were based on private briefing by none other than Chris Grayling (or a junior minister, special adviser, or press officer acting on his behalf). And, if I am right, that in turn betrays a 180° change of direction in the Ministry’s spin on fees.

In March this year, when the Ministry’s quarterly tribunal statistics revealed a 79% fall in ET claims in the period October to December 2013, compared to the same quarter in 2012, ministers spun the line that this cliff-shaped decline was in fact no more than the anticipated continuation of a “longer term downward trend” in the number of claims. In other words, the introduction of fees had had little if any impact on the number of claims.

But with the next set of quarterly tribunal statistics, released in June, confirming a similar evisceration of ET claims of all types and jurisdictions in the period January to March 2014, and the Ministry’s patently bogus line being easily blown apart by a few simple charts, ministers appear to have changed tack.

In short, the Ministry’s original line of ‘nothing to see here, move along please’ has given way to a story in which clever Chris Grayling has saved the nation from an ‘unceasing flood’ of (vexatious) ET claims with a ‘simple’ but highly effective reform. And I imagine we are going to hear much more about Grayling’s heroics over the coming weeks. So it is worth taking a few moments to note the flaws in the Ministry’s new spin, which is no more credible than its old spin.

Firstly, there have never been “over 200,000” ET cases a year, as McKinstry suggests in the Sunday Express. Nor were there 191,000 cases in the financial year to March 2013. There were some 191,000 claims in 2012-13, but that headline figure includes all the claimants in the relatively small number of multiple claimant cases, each of which is brought (on the same grounds) against one employer. And, if the concern is the overall impact of ET claims on businesses, then it is the total number of cases (single claims/cases and multiple claimant cases) that is most meaningful, since that is also the number of employers affected.

In 2012-13, for example, the headline total of 191,541 claims consisted of 54,704 single claims/cases brought against 54,704 employers (or slightly fewer than that, in fact, as some claims would have been against the same employer), and a total of 136,837 multiple claimants in just 6,104 multiple claimant cases brought against 6,104 employers. Furthermore, many – perhaps most – of those 6,104 multiple claimant cases were equal pay claims brought by trade unions and law firms against local authorities and other public sector bodies. So they didn’t impose any burden at all on ‘businesses’.

So Doughty’s “£1.6 billion a year in defence costs” for businesses in 2012-13 – which he calculates by multiplying his (or Chris Grayling’s) average cost per claim figure of £8,500 by 191,000 – was more like £0.5 billion (£8,500 x 60,808 cases) spread across just 60,808 employers in both the private and the public sector.

Secondly, the number of ET cases was not an ‘unceasing flood’ until Grayling’s heroics in July 2013. On the contrary, there was a long(ish)-term downward trend in the number of cases, and especially the number of single claims/cases – though that trend does not explain the sudden drop-off since the introduction of fees. Indeed, as the following chart shows, not only had there had been a steady decline in the number of cases since a recession-induced peak in 2009-10, but by the first quarter of 2013-14 (i.e. April to June 2013) the rate of new cases was at its lowest level for more than a decade. So, hardly a situation requiring heroic (and drastic) ministerial action.

Chart 1: Single claims & multiple claimant cases, 2000-01 to 2013-14*

cases

Source: Ministry of Justice. *The figure for 2013-14 is a projection based on Quarter 1 (April to June 2013) only.

Now, it is true that, in the late-2000s, the average number of claimants involved in each multiple claimant case increased significantly, largely due to trade unions and law firms trawling for claimants to join equal pay claims brought against local authorities and other public sector bodies. So the headline, total number of claims grew accordingly. But the number of such multiple claimant cases (the red area in Chart 1, above), and therefore the number of employers affected, remained relatively small. But in any case, as the following chart shows, since peaking in 2009-10 even the number of multiple claimants has been in decline.

Chart 2: Multiple claimants, 2000-01 to 2013-14*

multiples

Source: Ministry of Justice. *The figure for 2013-14 is a projection based on Quarter 1 (April to June 2013) only.

The third – and perhaps most significant – flaw in the Ministry’s new spin, of course, is the assumption that every single one of the tens of thousands of claims lost to fees since July 2013 was a ‘vexatious’ claim. That is not an assertion that is susceptible to proof (or disproof) by chart – you are either stupid and/or gullible enough to accept it, or you are reasonably intelligent and know that it is wholly implausible. Prior to the introduction of fees, not even the wackiest of the employer lobby groups ever suggested that 80% of all ET claims were vexatious.

The real test of Grayling’s new spin will be not whether he can feed willing journalists at the Daily Mail and Sunday Express – any idiot can do that – but whether he can bamboozle Parliament on this point when he announces the conclusions of the Ministry’s Post-Implementation Review.

Time will tell. But at least now it is common ground that the ET fees regime has had a dramatic impact on the number of claims/cases. In these grim days of evidence-free, ideological policy-making, that has to count as progress.

 

[i]             According to Table C.1 of the quarterly tribunal statistics published by the Ministry of Justice in June 2014, there were 21,809 ET claims (singles and multiples) in the six-month period October 2013 to March 2014; 32,292 such claims in the period September 2013 to February 2014; and 36,399 such claims in the period August 2013 to January 2014. Similarly, there were 102,066 such claims in the six-month period February to July 2013; 108,049 such claims in the period January to June 2013; and 94,937 such claims in the period December 2012 to May 2013.