Oh look, a new set of quarterly ET statistics …. zzzzzzzzz

Warning: This post contains selected statistics, taken in isolation and out of context (© S Vara)

I have already written here about how yesterday’s latest set of quarterly tribunal statistics has cast yet more doubt over whether we humans will ever solve the Hancock Theorem, the last great unsolved mathematical puzzle of our time. But that post contained only two charts. And that is never enough to satisfy Gem Reucroft. So here are some more. With new colours!

ET case numbers are now really, really boring

Never mind the denial of justice, just look at the stability! Great for management planning. In Q2 of 2015/16, there were 4,345 single claims, just 58 fewer than in Q1. Such uniformity is unprecedented, and suggests ET claim/case numbers really have hit rock bottom.


Except ….

One story partly hidden in the above chart is the long, slow death of the multiple claimant case – that is, the kind of case that, in 2011, provided Coalition ministers with their bogus reason to introduce fees.


Have such multiple claimant cases been displaced to the civil courts by fees? Or have Stefan Cross QC, and the trade unions, simply run out of local authorities and NHS trusts to bring equal pay claims against? I haven’t got a clue, but someone who must know is Shailesh Vara, the cleverest man in the Government, who’s been reading the report of his Ministry’s post-implementation review of ET fees for the past two months. One paragraph at a time, it seems.

One day – quite possibly within the next year or two – Mr Vara will get to the end of the report, and will then tell the rest of us what it says. Maybe it just doesn’t have enough colourful charts for someone of Mr Vara’s intellect. They could have asked me!

In the meantime …

… while the junior injustice minister makes his stately progress through the post-implementation review report, as of the end of September 2015 the number of single ET claims/cases ‘lost’ to fees since July 2013 was somewhere between 52,290 and 58,380. But then my projections are so selective and out of context. And, in any case, according to the Hancock Theorem, not one of those 52-58,000 claims would have been well-founded.

Yes, the ability of the Ministry of Injustice to calibrate their ET fees so precisely as to weed out up to 58,000 vexatious and otherwise unfounded ET claims without denying access to justice to one single exploited worker makes the RAF’s Brimstone missile – now pounding Syrian sand into even smaller grains of sand with great if highly expensive accuracy – look like, well, an unguided missile.



Hurry up, Mr Vara!

If you were travelling to work on the 159 bus yesterday morning, and the peace of your journey was ruined by a lot of swearing, moaning and face-palming by a clearly disturbed man in the front seat, then I apologise. Yes, that was me. And I was reading my print-out of the Hansard of Tuesday afternoon’s Westminster Hall debate on the impact of employment tribunal (ET) fees.

At that point, I hadn’t even got to the Alice in Wonderland contribution of the junior injustice minister, Shailesh Vara. My huffing and puffing was due to the failure of Justin Madders, who had initiated the debate, and other opposition MPs to grasp that, far from rising dramatically since the introduction of fees in July 2013 – as one could expect if the fees were deterring only ‘vexatious’ or otherwise weak claims – the success rate of claims has fallen significantly.

“If the objective of introducing fees was to weed out unmeritorious claims, the policy has been a failure. The success rate has not really changed,” said Mr Madders, before reiterating, a minute later, that “Ministry of Justice statistics indicate that success rates have in fact remained broadly the same, rather than increasing.” Mr Madders even flourished some of those Ministry figures, stating: “In the four quarters after fees were introduced, success rates were broadly similar at 9%, 9%, 5% and 13%.”

And Mr Madders wasn’t alone. Later in the debate, former Thompsons lawyer Jo Stevens noted that there is no evidence for ministerial assertions that fees are simply deterring ET claims by “people trying to make a fast buck” because “the success rate has stayed at the level it was at before the introduction of fees.”

Except it hasn’t. As set out ad nauseam on this blog, the success rate – however one measures it, and there are two ways of doing so – has fallen significantly in the four most recent quarters. I don’t recognise the four quarterly figures cited by Mr Madders, but if he really means the first four quarters after July 2013, then he is looking at the wrong quarters, for the simple reason that most of the claims decided in those four quarters were made before the introduction of fees. On average, it takes the system some nine months to determine a claim, so we can’t expect to see any noticeable impact of fees in the outcome figures – upwards or downwards – until about the middle of 2014. And, as the following chart shows, that is indeed when we see a sharp downwards change in the overall success rate.

Outcomes 2010 on

To be fair to Mr Madders and Ms Stevens, they are not alone in getting this wrong: Citizens Advice – which appears to have briefed the MPs – is guilty of the very same oversight. But then Citizens Advice hasn’t had an employment policy officer since 2013. These facts may or may not be related.

Anyway, I’m not going to repeat myself here, especially as the next set of quarterly figures will be published next week, and I will update my analysis of the data on outcomes then. But perhaps Mr Madders and Ms Stevens could spend five minutes reading the final section of this blog.

So, back to the real villain of the piece, the Parliamentary Under-Secretary of State for Injustice, Shailesh Vara. Luckily for Aviva, I had got off their bus before I got to Mr Vara’s contribution to the debate, otherwise I may have done it serious damage with my forehead. As noted previously on this blog, Mr Vara is not one of the Government’s most high-profile ministers. Apart from anything else, he’s one of the diminishing minority of MPs who don’t have a Twitter account, which begs the question: how on earth does he fill his working day?

Whatever Mr Vara does get up to in his Ministry office, it doesn’t appear to include reading the ET fees review report that was completed by Ministry officials and dumped on Mr Vara’s desk at least two months ago. Throughout his contribution to Tuesday’s debate, Mr Vara gave the impression that the review – belatedly launched in June – is still keeping his officials busy looking for ways to back up his evidence-free claim that “it is too simplistic to say that the fees [have been] responsible for the drop [in claim numbers].”

Yet, no sooner had I finished reading the Hansard, and recovered from the shock of learning that “criticism [of the fees] has tended to focus on selected statistics, taken in isolation and out of context”, that I came across the minutes of the 7 October meeting of the ET National User Group. And, according to Ministry official Bill Dowse, as recorded in the minutes, the review report was by then complete and “with the relevant minister.” Which is Shailesh Vara.

Screen Shot 2015-12-02 at 21.24.10

So, come on Mr Vara, don’t tell us what the review report might say. Tell us what it does say. We’ve been waiting long enough. Or are you waiting for the Justice select committee of MPs to give you cover?


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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


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).


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.


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”.