Working Theory

by Michael Reed

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I do employment law for the Free Representation Unit.

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michael at workingtheory.co.uk

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Are Ministers worth talking to?

19 January 2015

Richard Dunstan tweeted a link to the following parliamentary exchange last week:

15th January 2015

Diana Johnson (Shadow Minister,Home Affairs): On promoting equality, what will the Minister do about the 91% drop in claims for sex discrimination that have gone to an employment tribunal since her Government introduced the fee of £1,200 to take a case?

Nicky Morgan (The Secretary of State for Education, Minister for Women and Equalities): In 2011-12, there were 1,700 employment tribunal claims which included, for example, maternity rights-based claims. Of those, 900 were ACAS-conciliated, 120 were successful at hearing and 430 were withdrawn. A claim can be launched with a payment of just over £200. It is right that people still have the option to go to employment tribunals, but the fact that the ACAS numbers are so high shows that it is possible to reach agreement between employers and employees.

Such a lot wrong with such a short statement.

I suppose, arguably, the £250 issue fee is ‘just over £250’ – althought it’s not the phrase I would use. More significantly, the Minister doesn’t mention the £950 hearing fee.

More than that, in 2011-12m there were 10,800 sex discrimination claims accepted by the tribunal, so the Minister is off by 9,100. She may be thinking of detriment / unfair dismissal claims relating to pregnancy. Yet there were 1,900 of those in 2011-12, so the figure is still wrong.

But, since the Minister is talking about outcomes, she must be talking about disposals, not receipts anyway. As far as I know, the government has never produced statistics on outcomes by reference to when claims started. This doesn’t help with the figures. In fact it makes it worse. There were 14,700 sex discrimination claims disposed of by the tribunal in 2011-12, 4,500 settled by ACAS and 290 win at tribunal. And maternity claim disposals in 2011-12 were still counted as part of Other Claims; there was no separate category.

In short, I’ve got no idea where the Minister’s figures comes from, but they don’t look right. Not to mention, why are we talking about what was happening in 2011-12 in the first place? There is far more recent information available.

Unfortunately, this isn’t an isolated example:

16th December 2014

Diana Johnson (Shadow Minister,Home Affairs): Since the Government introduced employment tribunal fees, there has been a drop of 84% 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 (Under-Secretary of State for Justice): The situation is a lot more complex than the hon. 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.

ACAS pre-determinations? The Minister appears to have single-handedly created a new system of independent arbitration for the employment tribunal!

But my point isn’t that government ministers are saying silly things (at least, it’s not my only point).

More importantly it’s the type of silly thing that they are saying. These are simple, stupid goofs. A total misunderstanding of how ACAS Conciliation works; order of magnitude errors in tribunal statistics and, one must assume, no close attention paid to the more recent statistical bulletins.

They’re not just differences in political perspective or the sort of shading that one might expect from a politician facing hostile questioning. In my opinion, these answers show that the politicians involved – both qualified solicitors – haven’t properly understood the basics of the tribunal system they’re discussing.

This is depressing. Employment Tribunal fees, and their effects, are vital issues. The decline in tribunal claims following fees is one of the pressing matters facing those of us concerned with either equality or justice.1

I, and lots of others, have strong views on fees and their impact. I have no problem with the idea that others disagree. Lets have a debate.

But it might have to be a debate with someone better informed than the Ministers.

  1. Even as an employment practitoner, I wouldn’t claim it was the most important one. Criminal and family law are, regretably, in even worse trouble. But that doesn’t make employment tribunals unimportant.

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