New ET claim stats: don’t hold the front page

On Friday, when you were possibly too busy drowning your sorrows to notice, the Ministry of Injustice published the latest set of quarterly employment tribunal (ET) statistics, covering the period July to September 2019 (Q2 of 2019/20). And, at first glance, there seemed to be good news for underemployed employment lawyers: a stonking 23% rise in the number of single claims/cases, from 9,722 in Q1, to 12,007.

However, in its commentary on the data, the Ministry notes that this increase is largely due to “the inclusion of 1,700 [single] cases that will be reclassified as multiple claims once fully vetted”. And a quick scan of Table C3 of Annex C (ET receipts) suggests that most of these 1,700 single cases awaiting reclassification as multiple claims were lodged in Scotland in August. Removing these 1,700 cases from the data leaves the increase in single claims/cases looking somewhat less dramatic, but it is worth noting that the number of such claims/cases was nevertheless above 10,000 for the first time since Q2 of 2013/14.

Then again, it is not at all clear from the data on jurisdictional claims what is driving the relatively mild but steady upwards trend in the number of single claims/cases since Q3 of 2018/19. For, as the following table shows, in all but three of the 22 jurisdictions (including ‘Others’) identified by the Ministry of Injustice in its statistics, the year-on-year trend is either downwards (15 jurisdictions) or only marginally upwards (four jurisdictions). So, this quarter, we should at least be spared from garbage press reports about the impact of #MeToo on ET claim numbers.

Jurisdiction Jan – Sept 2018 Jan – Sept 2019 % change
Age discrimination 1979 1365 -31.0
Breach of contract 10382 10540 1.5
Disability discrimination 5025 5443 8.3
Equal Pay 24804 20268 -18.3
National Minimum Wage 311 231 -25.7
Part-time workers Regs 204 213 4.4
Public Interest Disclosure 1990 2007 0.9
Race discrimination 2617 2561 -2.1
Redundancy (inform & consult) 4817 3628 -24.7
Redundancy pay 3687 4321 17.2
Religion/belief discrimination 549 511 -6.9
Sex discrimination 7954 4670 -41.3
Sexual orientation discrimination 338 327 -3.3
Suffer detriment/UD – pregnancy 1222 1181 -3.4
TUPE 585 468 -20.0
Unauthorised deductions 17808 16306 -8.4
Unfair dismissal 16455 15024 -8.7
Working Time Directive 42680 19876 -53.4
Written pay statement 2065 490 -76.3
Written statement (dismissal) 222 224 0.9
Written statement (T&Cs) 1053 932 -11.5
Others 14455 21544 49.0
Total 161202 132130 -18.0

Finally, the Ministry’s commentary on the latest set of data confirms that the mean age at disposal of single ET claims/cases continues to creep upwards, and in Q2 was greater than in any quarter since 2014.

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Brexit: Never really over

(With apologies to Katy Perry)

I’m losing my self-control
Fuck, the Tories got back in
But I don’t wanna fall down the rabbit hole
Cross my heart, I can’t do it again

I tell myself, tell myself, tell myself, “Draw the line”
And I do, I do
But once in a while, I trip up, I cross the line
And I think of the EU

Three years, and just like that
My head still takes me back
To before the Referendum
But I guess it’s never really over

Oh, we’re in such a mess
Brexit isn’t the best
Boris said “get it done”
But I know it’s never really over

Just because it’s over doesn’t mean it’s really over
Boris said “get it done”, but he’ll be negotiatin’ again
And we’ll face a ‘no deal’ cliff edge all over again

Just because it’s over doesn’t mean it’s really over
We’ll never get a ‘final say’, we won’t be voting again
Now we just get to ‘do Brexit’ all over again

Thought we kissed goodbye
Thought we meant this ‘deal’ was the last
But I guess it’s never really over
Thought we drew the line
Right through EU and I
Can’t keep going back
I guess it’s never really over, hey

Three years, and just like that
My head still takes me back
To before the Referendum
But I guess it’s never really over

Just because it’s over doesn’t mean it’s really over
And even if I think it over, Brexit will be comin’ over again
And I’ll have to get over EU all over again
And I’ll have to get over EU all over again

Just because it’s over doesn’t mean it’s really over
And even if I think it over, Brexit will be comin’ over again
And I’ll have to get over EU all over again
Over EU all over again

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Personal Independence Payment – a saga

This post – about my son’s recent reassessment for Personal Independence Payment (PIP) by the DWP – will only be of interest to those applying for PIP or advising those doing so, and is posted in case it is helpful in any way. It is also a case study in how poor the DWP’s decision-making is, and possibly offers a couple of lessons to claimants and advisers.

Sam’s disabilities result from him having suffered severe pneumococcal meningitis in December 1999, when aged 20 weeks. The meningitis left him profoundly deaf, hemiplegic, epileptic (since resolved), and with mild learning difficulties (not apparent and diagnosed until some years later). In June 2001, Sam received a cochlear implant at Great Ormond Street Hospital, and in 2007 he received a bilateral cochlear implant.

In March 2016, having been in receipt of Disability Living Allowance (DLA) for more than a decade, Sam was reassessed and transferred over to Personal Independence Payment (PIP), at the standard rate for both Daily Living (a total of 8 points for ‘communicating verbally’, ‘reading’, and ‘budgeting’) and Mobility (10 points for ‘planning & following a journey’). And, as Sam was assessed by the DWP as not being able to manage his own financial affairs, including his PIP claim, I was made his ‘Appointee’.

Looking back now, I could perhaps have queried some of the DWP’s allocation of ‘descriptors and scores’ in 2016, such as just 2 points (out of a possible 12 points) for ‘communicating verbally’, which to my mind seemed a bit harsh for someone who is profoundly deaf.

However, overall, the PIP award did not seem unreasonable, given that Sam was still a child, and in financial terms it was not dissimilar to what Sam had been receiving previously under DLA. Furthermore, the award letter only gave the ‘descriptors’ that had been allocated to Sam, so I had no way of knowing whether he actually fitted better in different descriptors (I was not aware that the full set of descriptors is in fact available online). And, as a family, we had other priorities, such as challenging our local education authority in relation to their funding of Sam’s place at his residential school for the deaf.

Fast forward to June 2018, when the DWP called Sam for reassessment. However, as the DWP was only able to offer a ‘consultation’ on a week-day, at an assessment centre in London, and as Sam was away at his residential school (near Newbury) most weeks, the assessment did not take place until 4 March 2019, when Sam was home for half-term. I accompanied Sam to the ‘consultation’ as his Appointee.

The ‘consultation’ was a joke. At the outset, the assessor apologised for English not being her first language, and explained that she had only moved to the UK (from the Philippines) two months previously. Perhaps this shouldn’t have mattered, but it did mean, for example, that we later wasted 15 minutes after the assessor leapt on the fact that Sam has a provisional driving licence, which she immediately assumed must mean Sam has passed a driving test and drives a car. In fact, Sam has never sat behind the wheel of a car, and (like many of his deaf peers) only has the licence as a handy means of ID. But the assessor had never heard of and did not understand the concept of a provisional driving licence, so – while I was only supposed to be observing – I had to intervene repeatedly to explain it to her, as Sam himself was (understandably) unable to do so.

Whatever, on 12 March, the DWP terminated Sam’s PIP award, having allocated him just 2 points for Daily Living (for ‘communicating verbally’), and zero points for Mobility. So I lodged a request for Mandatory Reconsideration, which in July resulted in the DWP adding just 2 points for Daily Living (making budgeting decisions).

Sam’s disabilities are permanent, and will never improve. He will always be profoundly deaf, so will always rely on his cochlear implants for (less than perfect) communication, and he will always have the learning difficulties that prevent him being able to make even the most simple budgeting decision. So, surprised and disappointed by this ‘nil award’ by the DWP, and its confirmation on Mandatory Reconsideration, I lodged an appeal to the Tribunal.

However, on 22 August, I was equally surprised to receive a one-page letter from the DWP offering to grant PIP at the standard rate for Daily Living (i.e. at least 8 points), and the enhanced rate for Mobility (i.e. at least 12 points), on condition I withdrew my appeal to the Tribunal. This ‘Lapse Appeal Offer Letter’ did not include any reasoning for this somewhat dramatic change of position (see image below), and when I telephoned the DWP caseworker (as requested), he was unable to offer any explanation for the (somewhat unexpected) Mobility element of the award, other than that it is “for health and safety reasons”. Given that, only a few weeks previously, the DWP had twice allocated Sam zero points for this activity, and that in 2016 (i.e. when not yet an adult) he had only been allocated 10 points for this activity, I concluded that this 12-point element of the offer was unsustainable, and that it was an attempt to induce me into withdrawing my appeal, only to have the award reviewed (and lowered) at some point in the future.

Furthermore, the DWP’s letter did not set out which descriptors (and points) had now been allocated to Sam for each Daily Living activity, and the caseworker was unable to answer my questions on this, as he said he no longer had the file. So, for all I knew, Sam might only have been allocated 8 points for Daily Living, the lower threshold for the standard rate, in which case that allocation might also be at risk from a future review. Accordingly, I decided to decline the ‘offer’ and continue with my appeal, in the hope that the Tribunal would clarify these matters and confirm the correct allocation of points for Daily Living and Mobility.

I was then further surprised, on 16 September, to receive a telephone call from a clearly more senior caseworker, who first bewildered me with a rapid-fire monologue about the various descriptors – most of which I had never seen or heard of before, of course – and then offered to grant Sam enhanced rate for both Daily Living and Mobility, if I withdrew the appeal. Still suspicious, and not having any of the past documents to hand (as the telephone call had come out of the blue), I asked the caseworker to set out the details of the offer – including the points allocated for each activity – in writing, so that I could consider the offer properly, together with the past documents.

At that point, the caseworker adopted a bullying tone, stating: “You have to make a decision now, as I have to tell the Tribunal what is happening”. Noting (with respect) that this was her problem, not mine, I repeated my request for written details of this latest assessment of Sam’s disabilities. The caseworker then said she would put the offer in writing.

A few days later, I received a one-page letter from the DWP, but this did not set out the details I had requested. It simply gave the letter of the descriptor now allocated to four activities (three under Daily Living, and one under Mobility), without stating the full text of those descriptors (see image, below). So, when the DWP caseworker telephoned me again, chasing a decision, I rejected her offer and decided to continue with the appeal to the Tribunal, despite her offer being the highest possible award (in monetary terms).

Yep, that’s the DWP’s explanation of its new decision, in its entirety.

Just two weeks later, however, I received the 145-page appeal ‘bundle’ from the DWP, with all the documentation relating to Sam’s PIP claim since 2016, including a detailed reasoning – spread over a full five pages – of the latest allocation of points in relation to the four activities above, totaling 14 points for Daily Living, and 12 points for Mobility (planning & following a journey). And this five-page explanation of the award was dated just the day after I had last spoken to the (more senior) DWP caseworker. Had she provided me with this written explanation at that time, I would have been happy to accept the offer and withdraw the appeal. So, I wrote to the Tribunal, setting this out.

However, it is not possible to withdraw an appeal once the bundle has been issued, it seems, so at the end of October I found myself nervously taking a seat before a judge and two lay panel members at a hearing centre in central London. I had prepared a short speech, explaining why I had insisted on coming this far despite the DWP having offered the highest award possible (in financial terms), but it was not needed. With the two lay members smiling and nodding in agreement, the (kindly) judge quickly explained that, having read all the papers, they had already decided to allow the appeal and confirm the DWP’s award of PIP at the enhanced rate for both Daily Living and Mobility. Barely 20 minutes after arriving at the hearing centre, I was back on the street, clutching a letter from the Tribunal confirming their ruling.

So, a happy ending, with Sam on a higher rate of PIP than I most likely would have settled for in March 2019, had it been offered at that point. And Sam now has a Tribunal-confirmed benchmark of descriptors and points to take into the next reassessment in five years’ time: 8 points for communicating verbally; 2 points for reading & understanding signs, symbols & words; 4 points for making budgeting decisions; and 12 points for planning & following a journey.

But this is no way to run a disability benefits system. I wonder how many claimants, and especially those lacking basic computer skills or confidence – both the Mandatory Reconsideration request and appeal to the Tribunal have to be completed online – drop out when faced with the kind of nil award given to Sam by the DWP in March, and confirmed at Mandatory Reconsideration in July. And what if I had accepted the DWP’s first telephone offer, in August? Sam would have lost out on more than £7,500 (the difference between standard and enhanced rate for Daily Living) over the next five years.

My advice to any PIP claimant, therefore, is twofold: firstly, get your hands on the full set of descriptors at the outset, so that you can arm yourself with your own assessment of which descriptors should be allocated to you; and secondly, be prepared to stand your ground, even if that means going all the way to the Tribunal. According to the latest official statistics, 75% of all PIP appeals are allowed by the Tribunal at a hearing, despite the apparent practice on the part of the DWP of making highly tempting ‘offers’ to those with strong appeals, in return for withdrawal of the appeal.

And that latter practice may well explain why, according to the DWP, “the proportion of [PIP] appeals lodged which lapsed [i.e. where DWP changed the decision after an appeal was lodged but before it was heard at Tribunal] has gradually increased since 2015/16 – from 4% in that year, to 17% in the latest two quarters (October 2018 to March 2019)”. In short, the Tribunal is allowing 75% of appeals, despite the DWP conceding almost one in five appeals before they get to a Tribunal hearing/ruling. Which means the real success rate on appeal is 79.2% (17 + (83 x 0.75)). Well played, DWP.

In 2017-18, according to the justice minister’s response in June 2019 to a Parliamentary Question by the Labour MP Rushanara Ali, the DWP funded 29% of the £1 million cost to HM Courts & Tribunals Service (HMCTS) of social security appeals (including PIP appeals). That contribution may well have gone up since, but if I was a senior official at HMCTS, or a minister in the Ministry of Justice, I’d be demanding a lot more.

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Single Enforcement Body: Will the Tories boldly go where Labour and the Lib Dems failed to tread?

In July, the Government launched a formal, 12-week consultation on a proposal to establish a new Single Enforcement Body for employment rights. You might even have submitted a response (the consultation closed yesterday). And you probably concluded that it is just some dastardly Tory plan to slash the resources of the existing enforcement bodies. But how well do you know your (ancient) history?

Between 2000 and 2013, while working as employment policy officer at Citizens Advice, I researched and wrote a deadly boring series of policy reports arguing for a consolidation of the three main labour market enforcement bodies – the HMRC minimum wage enforcement team, the Employment Agency Standards Inspectorate (EASI), and the Gangmaster Licensing Authority (GLA) – into a single Fair Employment Agency fit for the 21st century, with the legal powers and resources to “root out the rogues” without imposing unnecessary regulatory burden on the great majority of compliant employers.

In the reports – and in any number of shorter articles, submissions to parliamentary committees, campaign leaflets, and conference presentations – I noted that, all too often, vulnerable workers are too fearful of further victimisation or dismissal to issue an employment tribunal claim, the principal means of enforcing most statutory workplace rights. And, as a result, rogue employers can profit from exploitation with near impunity. In 2005, for example, I noted that:

These workers tend to have a poor understanding of their statutory rights, and little if any awareness of how to assert or enforce them. Most are low skilled and low paid, and are employed in small, non-unionised workplaces. As a result, they are extremely vulnerable both to deliberate abuse by a ‘rogue’ or criminally exploitative employer, and to inadvertent non-compliance by an overstretched or inadequately informed employer.

Many small employers, especially those in low-profitability sectors of the economy, simply lack the means and resources – specialist, in-house human resources staff, for example – to keep fully abreast of their legal obligations to their workforce. Government-funded research by Kingston University confirms that most small employers are “not confident about their knowledge of individual employment rights”, due both to the common lack of “an in-house personnel function” and to the fact that many such employers deal with employment rights on “a need-to-know basis” only – that is, only when a particular situation arises. In short, the demands of running a small business in an increasingly competitive economic environment all too often lead to inadvertent non-compliance with statutory employment rights.

I suggested replacing this fragmented enforcement architecture with a “more joined-up system of advice, guidance and practical business support for small, low-profitability employers, and a more pro-active approach to compliance and, where necessary, enforcement” through a single enforcement body – or Fair Employment Agency.

From the outset, my proposal was firmly opposed by the Great Protector of workers’ rights, the TUC. Enforcing workers’ rights is a job for trade unions, not government, I was told. And union membership was now growing so rapidly that all workers would be unionised by the 26th century. Well, all workers in whatever remained of the public sector in the 26th century, anyway.

However, as few if any of the tens of thousands of vulnerable, exploited workers seeking employment-related advice from what were then known as Citizens Advice Bureaux would live to cheer the arrival of the TUC’s cavalry, I plodded on. Occasionally, I would win over a key public policy actor – the then Equal Opportunities Commission, the Institute for Public Policy Research, the trade union Unison – only to watch them get nobbled by the more influential (and much better resourced) brothers and sisters at the TUC.

Then, in early 2006, the Labour government became interested, announcing – in a DTI policy document, Protecting vulnerable workers, supporting good employers – that “we need to ensure that vulnerable workers are not mistreated but get the rights they are entitled to.” Policy officials at the DTI (or was it BERR by then?) made encouraging noises. And in 2007 I was invited to join a Vulnerable Worker Enforcement Forum, chaired by the employment relations minister. This included senior officials from the enforcement bodies, as well as officials from each of their sponsoring departments, and my friends and admirers at the TUC were there to ensure nothing significant ensued.

Sure enough, when the Forum concluded in August 2008, having decided to do little more than create a single telephone gateway to the various enforcement bodies – the Pay & Work Rights Helpline, since abandoned and rolled-up into the Acas Helpline – the then minister, Pat McFadden MP, told me that, while he agreed a single enforcement body/Fair Employment Agency was “a great idea”, he couldn’t be arsed with all the inter-departmental wrangling that would be involved in setting one up. (To be fair to Pat, what he actually said was “Gordon Brown won’t let me [because the TUC have told him not to], and I can’t spend another two years arguing with him.”)

Fast forward to 2011, when (I’m told) the Coalition’s first employment relations minister, Liberal Democrat MP Ed Davey, used to wave a crumpled copy of my last report for Citizens Advice on the issue at officials and demand to know “what we are doing about this”. ‘Not a lot’ seems to have been the answer, and in July 2012 a ministerial review of “the existing workplace rights compliance and enforcement arrangements, to establish the scope for streamlining them and making them more effective” quietly concluded that a single agency “would not provide significant benefits to workers.”

Noting that “the Government’s existing workplace rights compliance and enforcement arrangements are not those that someone starting now, with a blank sheet of paper, would devise”, and that “denial of paid holiday (or owed holiday pay) affects many more workers than denial of each of the rights that are covered by [the existing] enforcement bodies”, that 2011 report of mine waved by Ed Davey – Give us a break!, which was endorsed by the Child Poverty Action Group, the Fawcett Society, Gingerbread, Homeworkers Worldwide, the Law Centres Federation, Legal Action Group, Maternity Action, Oxfam, and Working Families – concluded that:

Through the application of a proactive, intelligence-led and proportionate approach to the enforcement of all those statutory workplace rights that are amenable to such an approach, including the right to paid holiday, a single Fair Employment Agency would simplify the enforcement framework and enhance the protection of vulnerable workers.

But it would also provide better value to the taxpayer, both through greater organisational efficiency and by reducing the number of potential employment tribunal claims. And, by targeting the rogues who profit from exploitation, it would help secure the fair competitive environment – or ‘level playing field’ – that is quite rightly sought by good employers, employment agencies and labour providers.

And, despite the negative outcome of the 2012 ministerial review, the idea clearly stuck around in someone’s head, because in October 2014, at the Liberal Democrat conference in Glasgow, then business secretary Vince Cable MP announced that his party’s manifesto for the 2015 general election would promise a new Workers’ Rights Agency, to “revamp efforts to enforce employment law and tackle the exploitation of workers” by combining the remits of “the minimum wage enforcement section of HMRC, the working time directive section at the Health & Safety Executive, the BIS Employment Agency Standards Inspectorate, and the GLA.” According to Cable, this “joined-up enforcement approach” would “ensure the minority of unscrupulous employers who break the law do not get away with undercutting other employers who play by the rules.” So, there would be significant benefits to workers after all.

In the event, Cable’s Workers’ Rights Agency didn’t make it into his party’s mahoosive, 160-page manifesto, though when asked about this his then junior minister, Jo Swinson, tweeted “the idea’s still there.” By which Ms Swinson appears to have meant ‘the idea’s now been stolen by the Tories.’ For, while the Tory election manifesto was as silent on the idea as those of the Liberal Democrats and Ed Miliband’s pathetically timid Labour, within a few weeks of his Nick Clegg-free return to Downing Street, in May 2015, David Cameron announced the creation of “a new enforcement agency that cracks down on the worst cases of exploitation.”

Evidently, not everyone in Cameron’s new government had got the memo, because all that came of this announcement was the creation – under Part 1 of the Immigration Act 2015 of all things – of “a new statutory Director of Labour Market Enforcement, responsible for providing a central hub of intelligence and facilitating the flexible allocation of resources” between “enforcement of the national minimum wage by HMRC, the regulation of employment agencies by [EASI] and the licensing of legitimate labour providers by the GLA.” And, in January 2017, Professor Sir David Metcalf, formerly chair of the Migration Advisory Committee, was named as the first holder of the post, charged with drawing up “an annual strategy targeting sectors and regions which are vulnerable to unscrupulous employment practices”.

Sir David published his first annual strategy in May 2018. This noted that

Employment rights are now predominantly enforced on an individual rather than a collective basis, following the decline in union membership and collective bargaining coverage. Yet the evidence suggests that awareness levels amongst workers and employers of rights, responsibilities and public enforcement are relatively low. The lack of knowledge and confidence to report issues, and consequently the vulnerability of workers, is not surprising given the complexity of different rights and employment statuses, combined with a fragmented enforcement landscape.

Sound familiar? Whatever, by this time, Theresa May had replaced the hapless David Cameron as prime minister, and in September 2016 had recruited the former head of Tony Blair’s policy unit, Matthew Taylor, to lead a review of workers’ rights and “modern working practices”. And, in July 2017, the report of the Taylor Review of Modern Working Practices concluded that “HMRC should take responsibility for enforcing the basic set of core pay rights that apply to all workers – NMW, sick pay and holiday pay – for the lowest paid workers”. And “going forward, the Government should consider whether other pay-based protections, such as protection against unlawful deduction from salary [i.e. ‘wage theft’ by employers], are also state enforced for the lowest paid workers”.

In December 2017, a research report by Middlesex University Business School, Unpaid Britain: wage default in the British labour market, concluded that at least two million workers experience non-payment of wages or holiday pay each year, and that those unpaid wages amount to at least £1.3 billion, and the unpaid holiday pay to at least £1.8 billion.

So far, so good, and in December 2018, in its response to the Taylor Review, the Government set out its “intention to enforce a wider range of basic employment rights on behalf of the most vulnerable workers”:

The government accepts the case for the state taking responsibility for enforcing [sick pay and holiday pay, as well as the NMW] on behalf of the most vulnerable workers. We will consult to gather detailed evidence of the scale and distribution of non-compliance with holiday pay and statutory sick pay obligations, and then evaluate the best way to target enforcement activity, remaining mindful of the need to minimise burdens on compliant businesses and ensure that enforcement activity is cost effective.

And, true to its word (for once), in July 2019 – just days before Theresa May was forced from office by her miserable but perhaps inevitable failure to ‘sort’ Brexit – the Government launched a formal, 12-week consultation on a proposal to establish “a new, single enforcement body” and whether this could deliver:

      • extended state enforcement, delivering our commitments to enforce holiday pay for vulnerable workers and regulate umbrella companies operating in the agency worker market;
      • a strong, recognisable single brand so individuals know where to go for help. In a single organisation we could improve the user journey, making it easier for individuals to raise a complaint and to tackle cases that might currently be handled by different organisations;
      • better support for businesses to comply with the rules, including coordinated guidance and communications campaigns, and a more easily navigable and proportionate approach to enforcement;
      • coordinated enforcement action, with new powers and sanctions to tackle the spectrum of non-compliance, from minor breaches to forced labour and increased focus on ‘high harm’ cases to disrupt serious, repeated offending; and
      • pooled intelligence and more flexible resourcing, enabling greater sharing of intelligence and national tasking and coordination of operational activity targeted at tackling serious breaches.

Launching the consultation, then business secretary Greg Clark (since departed) stated:

We have a labour market that we can be proud of with more people in work than ever before. But it’s right that hard-working people see their rights upgraded and are protected from exploitative practices, whilst ensuring we create a level playing field for the vast majority of businesses who comply with employment laws.

A new Single Labour Market Enforcement body will bring together our different enforcement partners, putting all our expertise in one dedicated place, better protecting workers and enforcing their rights now and into the future.

Sound familiar? And, responding to the initiative, Peter Cheese, chief executive of the CIPD, said:

The creation of a single enforcement body is an important step towards achieving better working lives for the UK’s most vulnerable workers. We welcome the government’s proposals and the recognition that tougher enforcement needs to go hand in hand with better support for businesses, many of which can fall foul of employment legislation unwittingly.

However, not everyone is being so welcoming. While I’ve yet to see their response, I understand that my friends at the TUC are no more enlightened than they were 15 years ago, and are opposing the proposal. And, while agreeing that “currently in the UK, we have multiple enforcement bodies, each with differing names, remits, access points, etc., [which] creates a complex, fragmented and confusing picture for workers seeking support for abuses and for employers trying to understand their responsibilities”, FLEX (Focus on Labour Exploitation) has given the proposal only conditional and somewhat unenthusiastic support.

Sure, a single enforcement body wouldn’t be a panacea. Nothing would. But it’s clear from the (long) history above that the current consultation isn’t some dastardly wheeze conjured up by the latest set of Tory ministers and their advisers to cut resources. If ministers wanted to cut the resources, powers or remit of the existing enforcement bodies, they wouldn’t need to pump new life into a 20-year-old (progressive) idea as cover for doing so. They’d just fucking do it.

No, as FLEX do at least note, “introducing a new body marks an opportunity to change the fundamentals of UK labour inspection”. Because, apart from very welcome increases (against the run of austerity) in the budget of the NMW enforcement team in particular since 2013 – I challenge you to show me any other area of (worthwhile) public expenditure that has increased by 170% since 2010 – the UK’s complex and fragmented enforcement architecture has barely changed in 20 years, despite enormous changes in the labour market, such as the growth of zero-hours contracts and bogus self-employment.

So, I’m not gonna hold my breath. Apart from anything else, it remains to be seen whether Boris Johnson will be as receptive and supportive as Theresa May seemingly was on this issue. And the clusterfuck of Brexit isn’t going to help. But I am encouraged by the fact that, at the same time it launched the consultation on a single enforcement body that closed yesterday, the Government appointed Matthew Taylor as interim Director of Labour Market Enforcement (Sir David Metcalf having retired in June). We may not be there yet, but, as Sam Cooke sang,

It’s been a long, long time coming,
But I know a change gonna come,
Oh, yes it will.

Update, 1 December: That a change is gonna come now seems possible, whoever wins the general election on 12 December. For – in stark contrast to the 2015 general election – each of the Conservative, Labour and Liberal Democrats manifestos pledges the establishment of a new enforcement body. The Conservative manifesto states: “We have already taken forward a number of recommendations from the Taylor Review” and “we will create a single enforcement body and crack down on any employer abusing employment law”.

Meanwhile, Labour’s manifesto states: “Labour will introduce a new, unified Workers’ Protection Agency to enforce workplace rights, including the Real Living Wage. It will be given extensive powers to inspect workplaces and bring prosecutions and civil proceedings on workers’ behalf.” And the Liberal Democrats’ manifesto states: “We will establish a powerful new Worker Protection Enforcement Authority to protect those in precarious work”.

So, Boris Johnson says ‘body’, while Jeremy Corbyn says ‘agency’ and Jo Swinson says ‘authority’. But they’re all talking about the same thing.

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Brexit: Till we get the healing done

So, as Jim Pickard of the Financial Times noted on Twitter yesterday, Jeremy Corbyn “has worked out what would heal the divided nation, and it’s a [second] referendum on EU membership”.

Yep, in his speech to the Labour Party conference in Brighton, Corbyn said:

Within three months of coming to power a Labour government will secure a sensible deal based on the terms we have long advocated and discussed with the EU, trade unions and businesses: a new customs union, a close single market relationship, and guarantees of rights and protections. And, within six months of being elected, we will put that deal to a public vote alongside ‘remain’. And as a Labour prime minister I pledge to carry out whatever the people decide.

Wow Jezza! Come on, leave me breathless!

Except … that breathless schedule begs at least three questions: Is six months really long enough to legislate for, and hold, a ten-week referendum campaign? Even if it is, what does that imply in terms of the extension of the Article 50 period that would need to be requested from the EU27 at the outset? And – given the answers to those two questions – how might the package go down on the doorstep in the general election campaign that Jezza hopes will climax in him picking up the keys to 10 Downing Street? (Or does he?)

And that third question matters. Because, if Jezza can’t take possession of those keys to 10 Downing Street, there ain’t gonna be any second referendum, period. Yep, that’s the uncomfortable position into which the People’s Vote campaign – masterminded on Monday mornings by a manel of closet Corbynistas such as Alastair Campbell, Peter Mandelson and Tom Baldwin – has got itself: unless their suddenly beloved Jezza triumphs in the coming general election, they’re fucked.

So, assuming that general election happens in late November or early December, could a newly-elected Labour government really legislate for, and hold, a People’s Vote by late May or early June next year? Well, some time ago, the much-loved Institute for Government set out how, even with a fair bit of (not terribly democratic) corner-cutting, and assuming the legislation sails through each house of Parliament unopposed in a matter of days, it would take a minimum of 21 weeks to do that.

Which means a second referendum in late May or June is just about doable, were the legislation to be introduced within days of Labour ministers walking into their departments, and then sail through Parliamant unopposed. Shall I say that again? Were the legislation to sail through Parliament unopposed. Good luck with that.

However, unless that amazing, unicorn-free new ‘deal’ with the EU is successfully negotiated within days, introducing the referendum legislation so soon would require the wording of the referendum question to be decided, and the Electoral Commission to start testing that wording (a process that accounts for the first eight of the Institute for Government’s 21 weeks), before anyone can say with any certainty what that deal actually looks like – or, at least, how and why it is so much better than the ‘deal’ negotiated by Theresa May and Ollie Robbins but rejected three times by MPs. I suspect the Electoral Commission (and many others) would very strongly urge ministers to conclude their negotiation with the EU27 before introducing their referendum Bill.

Which is not necessarily a big problem. In reality, a new Labour government would not be negotiating ‘a new deal’. It would simply be negotiating some changes to the non-binding Political Declaration that comes free with the Withdrawal Agreement negotiated by Theresa May and Ollie Robbins. The hated Withdrawal Agreement itself would not change. In short, the most a new Labour Government could hope to conjure up is May’s Blindfold Brexit deal with some ‘customs union’ ribbons tied on.

So, it might well not take three months to complete that ‘negotiation’, as Jezza allows for in his breathless schedule. Tom Kibasi of the IPPR thinks it could all be done in an afternoon. But it seems more realistic to assume – for the purposes of agreeing that Article 50 extension – that it would take at least a few weeks to complete the process of negotiating a revision of the Political Declaration text, dotting the ‘i’s and crossing the ‘t’s, and getting sign off from the European Parliament. What, you forgot that stage?

That means we are looking at a second referendum in late June or early July, at the very earliest. If the legislation sails through Parliament unopposed – got that yet? But the shiny new Labour government would first need to request, and get the EU27’s agreement to, an Article 50 extension some way beyond the date of polling day. Because, were the referendum to result in another vote to ‘leave’, the (secretly pleased) prime minister and his colleagues would need some time to make the necessary final preparations for exiting the EU.

With the holiday season probably not being the best time to have to make those final preparations, and allowing a bit of leeway in case, you know, the legislation does not sail through each house of Parliament unopposed in a matter of days, we are probably looking at the brand new Labour government having to request – or the less starry-eyed EU27 insisting on – a one-off extension to the end of 2020. The EU27 would not want Jezza coming back every few weeks to ask for yet another short extension because, let’s say, the referendum Bill isn’t sailing through Parliament unopposed, or Nigel Farage has been granted leave by the High Court to bring a judicial review of the referendum question.

Sure, Corbyn & Co can (and no doubt will) continue to claim they would have it all wrapped up in six months. But I rather suspect that, in the heat of a general election campaign, that flimsy and unrealistically optimistic claim will rapidly fall apart under the intensified scrutiny of journalists, and of voters heartily sick of Brexit.

Which brings us to the last of my three questions. Not even the most ardent remainer – I am one myself – actually wants a second referendum. The PVers just see it as ‘the best, and most democratic way’ of resolving the grisly Brexit impasse (which, let’s not forget, they helped to prolong by deliberately undermining and then voting down every possible compromise form of Brexit, from Norway Plus to May’s Withdrawal Agreement).

I happen not to agree with them on that – I think a second referendum would prove to be a ghastly repeat of the horrible mistake of 2016. But, more importantly, I suspect the combined general election offer of a further delay – sorry, Article 50 extension – to the end of 2020, and the unalloyed joy of a second, 10-week referendum campaign, will simply bomb on the doorstep. And, if it does, there will be no Labour-led government (or GNU), and no second referendum. It’s almost enough to make me vote Lib Dem. Almost.

As Van Morrison sang in “Till we get the healing done”, sometimes you’ve just got to sit down and cry.

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ET claim numbers: nothing to see, move along

So, the latest set of quarterly employment tribunal statistics – covering the period April to June 2019 (Q1 of 2019/20) – was published by the Ministry of Injustice yesterday, and it is time to play another round of that thrilling parlour game, Are ET Claim Numbers Continuing To Surge After The Abolition of ET Fees?

Well, as the Ministry notes in its summary document, the number of single claims/cases increased by 14%, compared to the same quarter in 2018. And the Ministry suggests that this is “most likely due to the continued effect of the abolition of ET fees on 26 July 2017”.

However, the increase was only 7.4% when compared to the previous quarter, so it’s not clear to me whether this counts as a “continued effect”, or just a mild upwards trend that might be due to the abolition of fees two years ago, or might reflect other more current influences (such as the record number of people in employment, or the impact of Brexit). Whatever, here’s a chart, and you can make your own assessment.

Interestingly, the picture is a little different when we look at the number of jurisdictional claims, as I did late last night to see which if any jurisdictions might be driving this mild upwards trend in single claim/case numbers.

For this exercise, I compared the two six-month periods, January to June 2018, and January to June 2019. Both periods post-date the abolition of fees (in July 2017), of course, so the comparison should reveal any ongoing trends. And the results are somewhat surprising, to me at least.

Because, as the following table shows, in 14 of the 22 jurisdictions (including ‘Others’) identified by the Ministry of Injustice in its statistics, the number of claims fell – in many cases quite significantly. And the total number of jurisdictional claims fell by 19.3%.

These 14 jurisdictions include most of the ‘high volume’ jurisdictions, such as Working Time Directive (down 57.2%), Equal Pay (down 18.1%), and Unfair Dismissal (down 4.4%), as well as six of the seven discrimination jurisdictions: the number of Sex Discrimination claims fell by 14.7%, Age Discrimination claims fell by 47.0%, and Pregnancy Discrimination claims fell by 8.3%. In contrast, the number of Breach of Contract claims rose by just 1.6%, and the only jurisdiction in which there was a substantial increase was ‘Others’ (which rose by 49.0%).

Yes, yes, as I have said myself many, many times, care must be taken when analysing the number of jurisdictional claims, as these vary significantly over time (in some jurisdictions at least) due to the influence of large multiple claimant cases. However, in recent months, that hasn’t stopped the planet’s leading employment law firm, GQ Littler, the CIPD and supposedly expert HR publications such as Personnel Today from pushing or running stories about supposedly astonishing spikes in the number of Disability, Pregnancy and Sex Discrimination claims.

Jurisdiction Jan – June 2018 Jan – June 2019 % change
Age discrimination 1,513 802 -47.0
Breach of contract 7,118 7,230 1.6
Disability discrimination 3,290 3,439 4.5
Equal pay 17,197 14,084 -18.1
National Minimum Wage 233 107 -54.1
Part-time workers Regs 97 116 19.6
Public interest disclosure 1,347 1,362 1.1
Race discrimination 1,792 1,655 -7.6
Redundancy (inform & consult) 3,994 2,747 -31.2
Redundancy pay 2,441 3,118 27.7
Religion/belief discrimination 387 321 -17.1
Sex discrimination 4,182 3,567 -14.7
Sexual orientation discrimination 217 196 -9.7
Suffer detriment/unfair dismissal – pregnancy 833 764 -8.3
TUPE 373 363 -2.7
Unauthorised deductions 10,839 11,765 8.5
Unfair dismissal 10,217 9,763 -4.4
Working Time Directive 36,654 15,703 -57.2
Written pay statement 1,866 314 -83.2
Written statement (dismissal) 146 195 33.6
Written statement (T&Cs) 705 634 -10.1
Others 9,977 14,870 49.0
Total 115,418 93,115 -19.3

Yesterday, after I tweeted the chart above, employment lawyer and #ukemplaw tweep Pete Holmes commented that his firm “are down on claims from last year. Unless we have a sudden surge we’ll have dealt with fewer early conciliations and [ET] claims compared to 2018”. The table above suggests Pete’s firm may not be the only one.

However, it is surely only a matter of time before GQ Littler have an article in The Times or Personnel Today about the rocketing 33.6% increase in Written Statement of Reasons for Dismissal claims. All 49 of them.

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Brexit: Do Johnson, Gove & Cummings have a cunning plan?

Do Johnson, Gove & Cummings have a cunning plan? Honestly mate, I haven’t got a fucking clue. No one has. Maybe not even them.

No, it’s a mug’s game making predictions about what may happen between now and Halloween – or, more to the point, between now and the EU Council meeting on 17-18 October, at which our fate will most likely come into sharp focus, if not actually get sealed.

However, we do know a few things. And these give us some guide as to what might just happen, and what probably won’t happen.

The first thing we know is that, over the past three years, Johnson has had a ring-side seat as Theresa May’s place in the history books shrivelled to nothing more than being one of the names in the hat – along with Gordon Brown and Johnson’s erstwhile Bullingdon Club wank-buddy, David Cameron – for the accolade of ‘worst prime minister, ever’.

Does anyone seriously think that – having now read or listened to the civil service’s confidential briefings on the likely impact of ‘no deal’ – a man who sees himself as the 21st Century’s Winston Churchill is about to risk a similar fate by allowing the UK to crash out of the EU with no deal? Because, while Johnson may not know for sure just how bad ‘no deal’ would be, he (or Cummings) must know it could be very, very bad indeed.

And, as our former ambassador to the EU, Ivan Rogers, says of those who think that, “if we just have the guts to walk away”, the EU27 will “come running for a series of mini-deals [assuring] full trading continuity in all key sectors on basically unchanged Single Market and Customs Union terms”:

I don’t know what tablets these people are taking, but I must confess I wish I were on them.

So, were crashing out to prove as bad as most sensible people expect, even someone as slippery as Johnson would then struggle to avoid being blamed for the economic and social chaos. It’s one thing for 50-something men in Essex to fantasise about World War II, but quite another for them to find themselves living through a realistic re-enactment.

No, that is all too risky. Johnson has schemed and back-stabbed a long, long time to become Prime Minister, and he’s surely not going to risk having his name thrown into that hat alongside May, Cameron and Brown after just a few months. Johnson wants five or even up to ten years in Downing Street (I imagine any longer would be too much like hard work, when there are spondoolies to be made from the memoir/diaries and lecture tours).

All of which also means that Johnson is unlikely to engineer a general election much before he has ‘delivered’ Brexit – or, at least, before he is able to claim that he has almost delivered Brexit (more on this below). As both 2015 and 2017 demonstrated, general election campaigns have a habit of not going to plan, and if by polling day it’s looking as if Brexit might somehow not happen after all, the Brexit Party might well burn the Tories alive and so inadvertently hand the keys of Downing Street to the “dreadful hearty beast”, Jeremy Corbyn, or to the Remainer wet dream of a stuffed and mounted Gnu led by Jo Swinson, Ken Clarke or Caroline Lucas. On 6 August, Mujtaba Rahman of Eurasia Group reported that “Johnson has told his inner circle he cannot risk an election before Brexit is delivered”, and “we think his view has been reinforced by [the] Brecon & Radnorshire by-election.” No shit, Sherlock.

G-no, g-no, g-no, Johnson’s not that daft. And Cummings certainly isn’t. However, with a majority of just one, and with further by-elections and even possible defections not far beyond the horizon, we know that Johnson does need to have a general election soonish. He just needs to be reasonably confident that that election will deliver him the majority he needs to enjoy at least five years larking about in Downing Street.

With ‘no deal’ ruled out, this means Johnson needs a deal with the EU27. It’s pretty clear he’s not going to get a new deal (and, at the moment, he’s not even trying). But there is plenty of scope for last-minute, high drama negotiations to produce lots of pretty ribbons – in the form of amendments and/or additions to the (essentially meaningless) Political Declaration that comes free with the Withdrawal Agreement-based, Blindfold Brexit deal bequeathed to us by Theresa May and Olly Robbins – for Johnson and the EU27 to tie around that old deal at the EU Council meeting on 17-18 October.

[Addendum, 21 August: Funnily enough, this week, German chancellor Angel Merkel was reported as saying, during a trip to Iceland, that “on the backstop issue, this is a question of the Political Declaration on [the future relationship]. There is no need to reopen the [Withdrawal Agreement] for a practical solution.”]

Nigel Farage, Mark Francois, and the DUP would of course blow a gasket. BETRAYAL! But the DUP have a price for everything, and Johnson has a nodding dog Chancellor to pay it. No one really listens to Mark Francois, other than BBC Newsnight producers and presenters. And what reasonable person could deny that the bloody French and Germans have put poor old Boris – who tried his best, unlike that wimp Theresa May – in an impossible situation? (I’m being sardonic here, you do realise that, yes?)

So, on the Monday after the EU Council meeting, with just 10 days left on James ‘not so’ Cleverly’s countdown clock, Johnson calls a general election (and immediately dissolves Parliament) on a platform of ‘Back me and get the only possible Brexit six weeks from now – golly gosh, terribly sorry about the short delay, old bean, nothing I could do, bloody Frogs! – or sack me and get the chaos of Corbyn or a Gnu’. The EU27 agree to a short, technical extension of the Article 50 period, to ‘allow the democratic processes to play out’. And Nigel Farage’s frantic claim that Johnson hasn’t actually delivered Brexit leaves him looking a bit of a party pooper, given we’re only talking about a delay of a few weeks. It will all be over by Christmas!

Fixed-Term Parliaments Act, you say? Yep, that went well on 18 & 19 April 2017, when literally everyone assumed that Theresa May was on course to crush both Labour and the Remainer saboteurs. Believe it or not, political turkeys cannot resist voting for a general election Christmas.

Johnson would never get a beribboned Withdrawal Agreement through the Commons, you say? Well, he would if he’s just won a general election on a platform of leaving the EU on such a basis before Christmas. He’d have the necessary majority, and a clear mandate.

But … surely Downing Street “stands ready to do whatever is necessary to bring about Brexit on 31 October – deal or no deal”? Well, maybe. Or maybe that’s just fake gnus.* As David Hayward noted in a must-read Twitter thread a few days ago:

Where there’s smoke, there’s not necessarily fire. [And] there are great clouds of ‘no deal’ smoke: Michael Gove, special meetings (twice a week and through August – who can imagine such sacrifice!), a £100m pamphlet, all manner of vim and vigour, freshly polished shoes, and Dominic Raab.

But. None of this amounts to much more than someone shouting “squirrel!”, very loudly, all the time. There’s tons of real work to do if you’re serious about ‘no deal’. And none of this is it.

Indeed. The most substantial proposal to come out of Michael Gove’s bi-weekly meetings so far is to make 1 November a Bank Holiday. Yes, really. This is just play-acting. As David Hayward continues in that Twitter thread:

If I was cynical, I might consider the whole non farrago (think smouldering wet leaves) a media management exercise targeted at the worshipful and the gullible to generate regular EXCLUSIVES to sustain a ‘lots of high energy stuff going on’ narrative.

Who’s the audience for this story? It’s not the EU27. The idea that the the EU negotiating team is going to be persuaded of ‘do or die’ by a bit of pamphleteering and Dominc Raab is for the birds.

In the words of the master of fake gnus, Donald Trump: “What you’re seeing and reading is not what is happening”.

So, we’re into a late November or early December election – Tory campaign slogan: “Help make Christmas come early this year!” – and the best we Remoaners can offer is a somewhat defeatist PV100 tactical voting target list to “help install pro-[second] referendum MPs or defeat MPs or candidates who oppose a second public vote”. But many potential pro-remain voters don’t want a second referendum – only about 1.3 million have signed the various PV petitions, but more than 6 million signed the ‘revoke’ petition in just a few weeks. And Caroline Lucas – who invented the People’s Vote – has already given the game away by saying she and other supposed democrats would ignore any second referendum vote for ‘leave’ in any case. Doh!

In other words, we’re back to July 2016, and to journalists demanding to know of PV-supporting candidates: “How many referendums do you want to have before you get the right answer?” That wouldn’t win a snap election against a super-charged Johnson and his extravagantly beribboned Brexit deal. And, if you can’t win that election, there ain’t gonna be any second referendum, period. (So, er, you may as well go for broke and stand on a platform of ‘revoke’ – just saying). But hey, at least the PVers would finally have answered the question of what options to put on the PV ballot paper.

Sounds implausible? Of course it does. And, if that election were to produce yet another hung Parliament, then just maybe the PVers would still be in with a shout. But how confident are you that it would produce another hung Parliament, in the circumstances I’ve just outlined?

Whatever, run me through your scenario, and I’ll tell you how it is just as implausible. Dominic Grieve and Oliver Letwin have a cunning plan for MPs to ‘take back control’, you say? What, like all their previous cunning plans? They went well. And now Grieve and Letwin are up against a united and super-charged government machine, not the near-dead shambles led (or not) by Theresa May. As constitutional expert Professor Mark Elliott of Cambridge University concludes:

The Supreme Court’s Miller judgment handed Parliament a golden opportunity to take control of the Brexit process. That opportunity was immediately squandered by parliamentarians who — for fear of being castigated as “enemies of the people” — fell over themselves to write the Government a blank cheque when they enacted the Notification of Withdrawal Act. That Act handed the Government complete discretion over when Article 50 should be triggered and provided Parliament with absolutely no instruments of control over the ensuing process. Ever since, Parliament has been playing catch-up.

As the autumn unfolds, and as the cliff-edge beckons, we will see whether the majority of parliamentarians who are opposed to a no-deal Brexit can recover the situation. Parliament does have options open to it. But those options are limited in legal terms — and decidedly so in political terms.

Or Grieve, Letwin and other Tory MPs will help vote Johnson down in a Vote of No Confidence in early September? Really? Well, with Labour selfishly – but predictably, perhaps even inevitably – refusing to become part of or support a Gnu, the most that could come of that is, er, a general election. Which, under my scenario, Johnson would call a few weeks later in any case. And, er, the Prime Minister gets to set the date of polling day. This would even save Johnson the minor trouble of having to explain why he’d changed his mind on calling an election. Genius.

[Addendum, 21 August: As for that elusive Gnu, I think Marina Hyde hit the nail on the head in her regular column in last Saturday’s Guardian:

Three years on from the Brexit vote, what best crystallises where we are? Perhaps that nowhere even close to 326 politicians can unify on what would constitute a government of national unity. The Liberal Democrats will do anything to stop Brexit, except for the things they won’t; Labour would love to stop the Tories’ version of Brexit, but first they just want to look busy and set this quick trap for the Lib Dems; the Greens want the headlines for a day and they’ve got a plan just batshit enough to secure them; and so on. Dominic Cummings must be cackling. The only worse form of unity was a Mitford.

So while it’s positive to have had leadership of the prospective government of national unity whittled down to just under 16 million candidates, it does feel a little bit near the business end of things for politicians to be indulging in the weapons-grade wankery we’ve seen this week.]

Whatever, the bottom line is, something that some or even many people currently think implausible, has to happen. And it will happen. Buckle up!

* Many thanks to the ever pun-ready @wonklifebalance for that one.

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