ET claims: no sign of the end of garbage press reports

Previously on this blog, I have noted that this year sees the 50th anniversary of the passing of the Equal Pay Act 1970. And I suppose it was only to be expected that one or more law firms would use such a milestone to try and drum up some business, by getting their name in the paper as experts in defending employers against equal pay claims.

So, step forward the global behemoth DLA Piper, whose public relations people secured a nice little piece in Monday’s Guardian. Under the headline “29,000 claims a year despite 50 years since Equal Pay Act”, this reveals that:

A consistently high number of workers are alleging that their employers are illegally paying them less than colleagues in similar roles, according to research [sic] released to mark the 50th anniversary of the Equal Pay Act.

The act, which established the legal principle that workers should receive equal pay for equal work [as equal pay lawyer Stefan Cross QC points out, that’s not quite right, but hey], was given royal assent on 29 May 1970.

However, 50 years on, the number of cases [they are claims, not cases, but hey] brought to employment tribunals are showing no sign of decreasing, according to research [sic] by the law firm DLA Piper.

Since the 2007-08 financial year, employment tribunals in England and Wales have received more than 368,000 complaints relating to equal pay, an average of almost 29,000 complaints a year.

Yes, the regular reader(s) of this blog – Hi @Wonklifebalance! – will recognise this as yet another classic of its kind: the old ‘Get Our Law Firm’s Name in The Papers in The Hope of Drumming-up Some Much-needed Business by Issuing a Press Release With an Eye-catching But Rubbish Story About ET Claim Numbers’ trick.

This involves your PR people finding a willing journalist who probably isn’t even aware that the HM Courts & Tribunals Service (HMCTS) publish detailed sets of ET claim statistics every quarter, then presenting them with your ‘research’ – which is in fact no more than a couple of autosums you’ve done in one of the HMCTS spreadsheets – on some topical employment law subject, and Bob’s your uncle! Your law firm’s name is in the paper, and employers can read how you are just the legal hotshots to go to should they face a no doubt wholly unfounded employment tribunal claim, or indeed if they just want to pay for your advice on how to avoid such a claim. Because the claim numbers are “consistently high”.

You probably think that most journalists are too smart to fall for this kind of PR trickery, but you’d be surprised. It’s an old trick, yet it works again, and again, and again. Most recently on this blog, we’ve seen it work for the law firms Fox & Partners (disability discrimination claims and mental health) and GQ Littler (sex discrimination claims and the #MeToo movement, then pregnancy discrimination claims and the #MeToo movement, and then ET waiting times.)

Anyway, back to equal pay. Have there been “more than 368,000” such claims since 2007/08? Well, yes. According to the freely-available HMCTS statistics, there were 375,225 equal pay claims between April 2007 and March 2020 (including my projection for the period January – March 2020, as the statistics for that quarter are not published until next month). Which, over the 13-year period, is an average of 28,863 claims per year.

However, as the following chart shows, those headline figures do not tell the whole story. Moreover, the assertion that equal pay claim numbers “show no sign of decreasing” is what we policy analysts call ‘utter bollox’.

Yes, what DLA Piper’s legal eagle – but statistical sparrow – Jane Hannon refers to as “the consistently high number of [equal pay ET] claims” is, well, not terribly consistent. So inconsistent is it, in fact, that the average annual number of claims in the first five years, on the left of the above chart – 42,043 – is almost twice that in the most recent five years, on the right of the chart: 22,909. And, just over the last two years, claims have fallen by 33% from the post-ET fees spike. Yet Jane Hannon sees ‘no sign [of the numbers] decreasing’. Maybe she should have gone to Specsavers.

But ‘the number of equal pay claims fell in ten of the last twelve years, and is now half what it was 13 years ago’ is not the message that DLA Piper want to get across to all the employers who might read their friendly journo’s article in the Guardian. No, they want those employers to be so worried about where that next equal pay claim might be coming from that they make a mental note of the name DLA Piper. You know, just in case. Or even get them in to provide some precautionary advice (for a fee). Because the claim numbers are ‘consistently high’.

Of course, none of this was in the minds of the steady stream of leftie employment lawyers and feminist activists who happily tweeted out the Guardian article on Monday. Fifty years of the Equal Pay Act, and still no sign of claim numbers decreasing! Yeah, we all know that. It’s an outrage, and a damning indictment of decades of misogynistic Tory misrule. Or something. Tweet sent! Extend gender pay gap reporting now!

But I’m not really sure that DLA Piper are as keen as all those happy tweeters (and me) to see the end of the scandal of unequal pay, after half a century of the Equal Pay Act. Not when they charge up to £200,000 (plus barrister fees) a time just to defend employers against unfair dismissal claims. Which tend to be shorter lived (and less complex) than equal pay claims.

No, at those rates, I suspect DLA Piper would not be completely devastated to see unequal pay claims continue for another 50 years.

Posted in Equality, Justice, Workers' rights | Tagged , | 1 Comment

Cumming up roses

A couple of days ago on this blog, we found that poor Matt Hancock was King of the Ratios when it came to tweeting support for Dominic Cummings. But then today, we had the extraordinary sight of Dominic Cummings breaking the rules on Special Advisers to explain why he had broken the lockdown rules by going on a road trip to Durham.

So, which Cabinet ministers were moved enough by the Rose Garden farce to throw a protective Twitter ring around Dad of the Year, Dominic Cummings?

Position Name Tweet Comment
Prime Minister Boris Johnson
Chancellor Rishi Sunak Dominic Cummings has made clear he was motivated by trying to protect his son and he took steps to be safe. I understand people had serious questions about his actions – indeed many of you have made huge sacrifices – but I do believe today he explained himself. Tweeted at 19:27
Foreign Secretary Dominic Raab Dominic Cummings gave a detailed account of his actions and how he followed the rules applicable to his family. Meanwhile, Cabinet met today and was totally focused on tackling C19 & moving the country forward. Tweeted at 18:14

 

Home Secretary Priti Patel Nothing so far
Duchy of Lancaster Michael Gove I agree with Kevin [Hollinroke MP] – it’s clear now that allegations were made which were untrue and Dominic Cummings acted legally and reasonably. Let’s concentrate on the work necessary to deal with the consequences of COVID 19 Tweeted at 17:57

 

Justice Secretary Robert Buckland Nothing so far
Defence Secretary Ben Wallace Nothing so far
Health Secretary Matt Hancock Dom Cummings was right today to set out in full detail how he made his decisions in very difficult circumstances. Now we must move on, fight this dreadful disease and get our country back on her feet Tweeted at 18:45
Business Secretary Alok Sharma Dominic Cummings has set out how he complied with guidelines when looking after his family. Having answered the questions put to him in detail, it is now time to move on and put all our energies into defeating coronavirus Tweeted at 19:28
International Trade Secretary Liz Truss Nothing so far
Work & Pensions Secretary Therese Coffey Nothing so far
Education Secretary Gavin Williamson Dominic Cummings has set out clearly what happened – hope we can all now focus on the country’s efforts to rebuild and recover from COVID-19. Tweeted at 18:31

 

Environment Secretary George Eustice Not on Twitter
HCLG Secretary Robert Jenrick Dominic Cummings gave a full and open explanation and answered every question put. He acted in the best interests of his sick wife and young child. He put no one else at risk. He clearly did what he believed was reasonable and within the rules. Tweeted at 18:48
Transport Secretary Grant Shapps Nothing so far
NI Secretary Brandon Lewis This evening Dominic Cummings has provided a comprehensive account of the events surrounding his travel to Durham. As he set out in detail, he followed the guidelines to ensure minimum risk to others & suitable care could be provided to his young child as required. Tweeted at 18:31
Scottish Secretary Alistair Jack Not on Twitter
Welsh Secretary Simon Hart Nothing so far
Culture Secretary Oliver Dowden Nothing so far
International Development Secretary Anne-Marie Trevelyan Key to helping break the chain of contagion has been to ask citizens to have as little interaction as possible with others. Dom Cummings took his family to a place of safety, maintaining social distancing, with family nearby in case, within the law. Durham Police agree. Tweeted at 19:29
Minister without portfolio Amanda Milling Dominic Cummings provided a very personal, honest and thorough explanation of events. He followed the guidelines while ensuring appropriate care was given to his young child. Time for us to move on and concentrate on all the work being done to beat the Coronavirus. Tweeted at 18:14
Chief Secretary Steve Barclay Nothing so far
Commons Leader Jacob Rees-Mogg Nothing so far
Lords Leader Baroness Evans Not on Twitter
Chief Whip Mark Spencer A full, frank, honest and open statement from Dominic Cummings. He acted as a father and husband, within the rules. He has had lots of mis information put out there about him. Time to move on and focus on solving this massive national challenge of Covid19 Tweeted at 16.59
Attorney General Suella Braverman Nothing so far

And here’s how those tweets worked out (as of 08:15 on Tues 26 May):

Posted in Uncategorized | Leave a comment

Dominic’s cumming home

He’s cumming home, He’s cumming home, Dominic’s cumming home.

But which home? On what date? And by what means of transport?

These and many other questions remain unanswered, 24 hours after 14 out of 26 Cabinet ministers took to Twitter to express their outrage at the politically-motivated attacks on a senior political adviser just doing what any good person would do to look after their toddler. Even though the guidance said any good person shouldn’t do that.

However, it is possible to piece together approximate answers to at least some of these questions, using publicly-available information, such as the published account of the events by Dominic Cummings’s wife, Mary Wakefield.

From these information sources, it is pretty clear that Mary Wakefield developed coronavirus symptoms – including “a nasty headache” – on Friday 27 March, the same day that the Prime Minister tested positive for coronavirus and began to self-isolate in Downing Street. Luckily for Mary, her “extremely kind” husband, Dominic Cummings, “rushed home from work” to look after her. And, indeed, Dominic Cummings was filmed running out of Downing Street, carrying a large and seemingly heavy bag, towards the end of the day on Friday 27 March.

According to Mary, the extremely kind Dominic himself collapsed with coronavirus symptoms just 24 hours later, and “for the next 10 days he lay doggo with a high fever and spasms that made the muscles lump and twitch in his legs”. And, indeed, by Monday, Downing Street sources were confirming to journalists that Dominic had developed “mild” coronavirus symptoms – including a cough – over the weekend, and was now self-isolating. By this time, we now know, both Dominic and Mary, and their toddler, were in Durham.

So it seems pretty certain that Dominic, Mary, the toddler and their coronavirus travelled from their home in Islington, north London, in breach of the law, to the evidently quite extensive home of Dominic’s parents in Durham, late on Friday 27 March, or early the next day (so, possibly in the middle of the night). Whether they drove, flew or took a train (see below), we don’t yet know. But starting on Saturday 28 March, or possibly on Sunday 29 March, poor Dominic spent 10 days in his Durham bed, lying “doggo”.

Then again, Dominic was evidently well enough to read and retweet tweets on Saturday 28 and Sunday 29 March; to read and reply to tweets on Monday 30 March, when he tweeted “train” in reply to those asking why he had needed to run out of Downing Street on 27 March; to retweet a press article on Tuesday 31 March; to retweet the Prime Minister’s thanks to “everyone who is doing their bit in the fight against coronavirus” on Thursday 2 April; and to retweet the PM on Saturday 4 April. Maybe not so “doggo”, then.

What “train” was Dominic running for late on Friday 27 April, I wonder? A ‘train’ from Westminster to Islington? Most of us would call that a ‘tube’. Or a train from London to Durham? Maybe we should be told.

 

 

 

 

If the lucky Mary’s account is to be believed, Saint Dominic then rose from his sick bed on Tuesday 7 April or (if his doggo-ness started on Sunday 29 March) on Wednesday 8 April. However, according to the Guardian and Daily Mirror, Dominic was seen, with the toddler, in the garden of his Durham home on Sunday 5 April. They may or may not have been dancing to ABBA. Maybe Dominic was only a little bit “doggo” by then.

Similarly, if Mary developed her symptoms on Friday 27 March, the day that Dominic does seem to have rushed (a) for a train and (b) home to look after Mary, then Dominic’s 14 days of self-isolation (as required by the Government’s coronavirus guidance) would have ended on Friday 10 April. So, he was out of self-isolation on Sunday 12 April (Easter Sunday, and Mary Wakefield’s birthday) when, according to the Guardian and Sunday Mirror, he and Mary made the 60-mile round trip from their Durham home to Barnard Castle, in breach of the Government’s then guidance to ‘stay at home, save lives’.

And, on Tuesday 14 April, Dominic was photographed back at work in Downing Street, clutching “a bag containing a carton of soup, a tangerine and a carrot”.

Subsequently, Dominic and Mary may or may not have returned to Durham, where – according to the Guardian and Sunday Mirror – they were seen walking among bluebells on Sunday 19 April, in full compliance with the Government’s then guidance not to “leave your home for any reason, other than to walk among bluebells”.

Bluebells, shmuebells. The key questions, it seems to me, are: on what date (at the end of March) did Dominic, Mary and the toddler travel unlawfully from London to Durham, and how did they get there? Did they travel by train and/or other public transport? If so, how many people did they interact with (and possibly infect), given that they should by then have been self-isolating?

Or did they unlawfully drive the 265 miles from north London to Durham? In which case, did they stop for petrol? Was this the first known case of a toddler spending four hours or more in a car without needing to go to the toilet? And, if they did stop en route, who got out of the car, and how many people did they interact with (and possibly infect), given that they should by then have been self-isolating?

FWIW, my working theory is that Johnson can’t sack Cummings, because then it would only be a matter of time before it comes out that Johnson sanctioned the road trip to Durham. It is inconceivable that the Prime Minister’s closest adviser would go to the far end of the country without at least telling the Prime Minister. And, if Cummings has to go for making the unlawful road trip, Johnson would have to go for sanctioning it. So, they have no option but to try to ride it out. They sink or swim together.

Posted in Uncategorized | Tagged , | Leave a comment

Coronavirus cummings & goings

So, the coronavirus guidance says if you or someone you live with has symptoms of coronavirus, do not leave home for any reason, unless you need to find someone to look after your toddler. Which is why Dominic Cummings was following the guidance when he drove 260 miles from London to Durham with a car full of coronovirus, just so that his sister could look after his four-year-old son while he and his wife lay in bed with that coronavirus.

Or something. It probably won’t take you long to find the flaw in the above argument. However, it appears to have gone over the heads of several Cabinet ministers, who – led by Michael Gove at 10:28 am – took to Twitter on Saturday to express their outrage at the political point-scoring about a man doing what any good person would do to look after their wife and toddler. Even though the guidance says any good person shouldn’t do that.

Including Leader of the Lords Baroness Evans (who is not on Twitter), there are 26 full members of the Cabinet, but Environment Secretary George Eustice and Scottish Secretary  Alistair Jack are also not on Twitter. And it’s not looking that great for The Great Toddler Carer. As of 11pm, only 14 Cabinet members have tweeted their support (if we include Chief Secretary Steve Barclay’s restrained RT of Rishi Sunak’s tweet, Home Secretary Priti Patel’s equally restrained and somewhat belated RT of Dominic Raab’s tweet, Education Secretary Gavin Williamson’s even later RT of Matt Hancock’s tweet, and Minister Without Portfolio’s Amanda Milling’s RT of Rishi Sunak’s tweet).

However, if we reach the position where a clear majority of the Cabinet have expressed the view that it is OK to flout the coronavirus guidance so long as you are only doing what any good person would do, does that mean the lockdown is over?

We should be told. In the meantime, here’s a record of who’s said what, so far.

Position Name Tweet Comment
Prime Minister Boris Johnson
Chancellor Rishi Sunak Taking care of your wife and young child is justifiable and reasonable, trying to score political points over it isn’t. Tweeted at 11:19
Foreign Secretary Dominic Raab It’s reasonable and fair to ask for an explanation on this. And it has been provided: two parents with Coronavirus, were anxiously taking care of their young child. Those now seeking to politicise it should take a long hard look in the mirror. Tweeted at 10:53
Home Secretary Priti Patel RT’d Dominic Raab’s tweet
Duchy of Lancaster Michael Gove Caring for your wife and child is not a crime

 

Tweeted at 10:28

Later RT’d Rishi Sunak’s tweet

Justice Secretary Robert Buckland Nothing so far
Defence Secretary Ben Wallace Nothing so far
Health Secretary Matt Hancock I know how ill coronavirus makes you. It was entirely right for Dom Cummings to find childcare for his toddler, when both he and his wife were getting ill. Tweeted at 12:52
Business Secretary Alok Sharma The circumstances have been explained, the guidance was followed. Time [to] stop the political attacks and move on as we work together to combat this awful virus Tweeted at 14:23
International Trade Secretary Liz Truss Nothing so far
Work & Pensions Secretary Therese Coffey Nothing so far
Education Secretary Gavin Williamson RT’d Matt Hancock’s tweet
Environment Secretary George Eustice Not on Twitter
HCLG Secretary Robert Jenrick Nothing so far
Transport Secretary Grant Shapps Nothing so far, but strongly defended Cummings at Saturday’s press briefing
NI Secretary Brandon Lewis Father looks after child, within guidelines…..&…?

 

It is fair to have questioned this – but an answer has been provided. Acting in the best interests of your family (and within the Government’s guidelines) is not a crime

Tweeted at 12:12 and 12:16
Scottish Secretary Alistair Jack Not on Twitter
Welsh Secretary Simon Hart Nothing so far
Culture Secretary Oliver Dowden Dom Cummings followed the guidelines and looked after his family. End of story. Tweeted at 16:49
International Development Secretary Anne-Marie Trevelyan The key ask to all citizens has always been to isolate as a household whilst any one of them is symptomatic. The responsibility of parenthood and needing family support in case extreme illness struck, is a situation any parent would understand & sympathise with. Tweeted at 12:08
Minister without portfolio Amanda Milling RT’d Rishi Sunak’s tweet
Chief Secretary Steve Barclay RT’d Rishi Sunak’s tweet
Commons Leader Jacob Rees-Mogg Caring for your child is obviously reasonable. Surely any parent of a three year old would want to ensure they are safe at all times. Politically motivated attacks on a good father are discreditable. Tweeted at 13:05
Lords Leader Baroness Evans Not on Twitter
Chief Whip Mark Spencer Nothing so far
Attorney General Suella Braverman Protecting one’s family is what any good parent does. The [10 Downing St] statement clarifies the situation and it is wholly inappropriate to politicise it. Tweeted at 13.40

And here’s how those tweets are doing (as of 8am on 24 May).

Posted in Uncategorized | Tagged , | 3 Comments

Shared Parental Leave: No need for candles

Until it got wiped out by the Covid19 pandemic, this year was a busy one for #ukemplaw anniversaries. And many of them are (or, at least, were) a cause for celebration: the Equal Pay Act 1970 is 50 years old this year, and the Equality Act 2010 is ten years old. Light those candles on your cake. But please do comply with social distancing rules.

However, there was another anniversary this year that is less a cause for joyous celebration, than a timely opportunity for reflection on whether we are on the right path. For 5 April 2020 was the fifth anniversary of the coming into force of the right to Shared Parental Leave, created by the Conservative and Liberal Democrat Coalition Government under Part 7 of their Children and Families Act 2014.

Since 5 April 2015, while new mothers are still legally required to take the first two weeks of maternity leave, they can then cut their maternity leave short, exchange if for Shared Parental Leave, and then share up to 50 weeks of that leave (up to 37 weeks of it paid) with the father or other parent. Well done, Jo Swinson.

At the time, the TUC and others warned that many new parents would not even qualify for the new right, leaving many new fathers with no statutory right to time off work in the year following the birth of their child, other than two weeks of paternity leave. And employers fretted about the sheer complexity of the new Regulations.

Sadly, those warnings and concerns have proven to be well-founded. As the journalist Alexandra Topping noted recently in the Guardian:

“Only around three in seven families are eligible (agency workers and those on zero hours contracts are excluded), and of those only about 1% have shared any leave at all. By any reckoning it is, according to Adrienne Burgess of the Fatherhood Institute, ‘an inequitable and failed policy’.”

In fact, robust data on take-up of Shared Parental Leave is pretty much non-existent, with the TUC basing its “just over 1%” figure, regularly cited by journalists, on an estimate published in early 2019 by the University of Birmingham, which in turn seems to have lifted it from a 2018 guesstimate by an employment law firm seeking to drum up business.

One key problem is that no one knows exactly how many new fathers are eligible for Shared Parental Leave. But we do know the number is most likely in excess of 250,000 (there were 660,000 births in 2018, and in 2013 the Coalition Government suggested there would be some 285,000 eligible fathers each year).

And we know, from various Freedom of Information requests to HMRC, that only 8,500 fathers received shared parental pay in 2018/19. So, five years after implementation, few believe that take-up of Shared Parental Leave has reached much beyond the lower end of the Coalition Government’s somewhat gloomy 2013 prediction of 2-8% of eligible fathers (or about 1-4% of all new fathers).

That is simply not good enough, if the aim is to tackle the widespread pregnancy and maternity discrimination in our workplaces, and the Gender Pay Gap, by enabling a societal shift towards more equal parenting. And five years is long enough to tell us that we cannot expect much more from Shared Parental Leave. As Alexandra Topping concludes:

“We have to overhaul parenting policy and parenting culture in this country, and we have to start now.”

The good news is that five years’ experience of Shared Parental Leave confirms the lessons we could and should have learnt from the impact of parental leave policies in other countries. In short, the most successful approaches in other countries – such as those in Sweden, Norway and Iceland – are based on individual, non-transferable rights for both the mother and the father, and on all leave being moderately well paid.

Which does not mean mothers and fathers have to have identical rights to leave in the first year of their child’s life: fathers do not play an equal part in the biological and physical endeavours of pregnancy, childbirth and breastfeeding. But we do need to greatly enhance new fathers’ right to paid parental leave, while protecting mothers’ existing rights to paid leave in late pregnancy and to recover from the often considerable physical and/or mental impact of pregnancy and childbirth.

In recent years, a (very) small number of employers such as the drinks conglomerate Diageo, the insurance provider Aviva, and the finance company Investec have justly garnered approving press coverage for introducing contractual rights to six months of parental leave, on full pay, for both new mothers and fathers. But their experience tends to confirm that such equal entitlements to well paid leave do not, by themselves, lead magically to equal parenting: at Aviva, mothers still take an average of 311 days of parental leave, while fathers take an average of only 158 days (i.e. not even their full contractual entitlement to six months’ leave on full pay).

In any case, while such supposedly equitable schemes might work well for large and highly profitable companies, it is simply fanciful to think that any government would move from our existing system of grossly underpaid maternity, paternity and shared parental leave to one that includes six months of statutory parental leave on full pay for each parent. The role of the statutory system will always be to provide a minimum level of provision that meets the basic needs of pregnant women and new parents. And, in the first year, women have greater needs than men. Really, it’s true. I’ve had two kids. So I know.

This is partly why the fab feminists at Maternity Action have proposed a simple, 6+6+6 model of statutory leave, to replace the chronically failing Shared Parental Leave: six months of maternity leave reserved for the mother, and six months of non-transferable (‘use it or lose it’) parental leave for each parent. This parental leave could be taken together or separately, giving a combined maximum of up to 18 months, if all leave is taken consecutively. Plus, as now, all new fathers (and adoptive co-parents) would get two weeks of paternity leave, available to be taken at or near the time of birth.

At least as important as fathers’ statutory entitlement to parental leave, however, is the rate at which it is paid. The currently, ludicrously-low rate of statutory maternity, paternity and shared parental pay – £151.20 per week – equates to just 49% of the national minimum wage (for someone aged 25 or over, working a 35-hour week), and to only 40% of the Living Wage Foundation’s living wage (outside London), which is independently-calculated as the minimum that people need to get by. Maternity Action suggest that, at the very least, this standard rate should be doubled, to £300 per week. And, in the longer run, it surely needs to go higher still.

Finally, as the experience of Aviva demonstrates, as much as we need to ditch Shared Parental Leave and replace it with a simpler, more equitable statutory system based on individual, non-transferable rights to leave and pay, such reform will fail to deliver equal parenting unless it is accompanied by robust action to increase the supply of good quality, affordable childcare, a shift to a ‘flexible by default’ approach to job design and recruitment, and a major effort by political and business leaders to drive a change in parenting culture.

How about we make sure that, five, ten or 50 years from now, we do have something to celebrate when talking about equal parenting? Once the Covid19 pandemic and lockdown is over, let’s not go back to the bad old normal.

Posted in Equality, Parental rights, Workers' rights | Tagged , , | 1 Comment

Latest ET claim stats: onwards and upwards

Once again, there is some good news this morning for any underemployed employment lawyers, with the latest set of quarterly employment tribunal (ET) statistics, covering the period October to December 2019 (Q3 of 2019/20), showing yet another small increase in the number of single ET claims/cases.

In Q3, there were 10,887 new single claims/cases, up from 10,307 in the previous quarter (after allowing for the 1,700 single claims/cases that the Ministry of Injustice still says, in its commentary on the statistics, “will be reclassified as multiple claims once fully vetted”). This represents a 25% increase on the same period a year ago, and – as the following chart shows – the current trend is slowly but steadily upwards.

The number of disposals of single claims/cases also increased, to 7,098, up from 6,036 in Q2, and 5,610 in Q1. Which may mean the 58 additional ET judges recruited in April last year are having an impact. However, the Ministry notes that, at 33,000, the “caseload outstanding [i.e. single claims/cases + multiple claimant cases] has almost reached the peak levels seen in 2009/10 (when it was 36,000 in both Q2 and Q3 of that year)”. And the mean age on disposal of single claims/cases has continued to rise, to 36 weeks (six weeks more than in the same quarter a year ago). As the following chart shows, this has now risen steadily since late 2017.

So, no wonder that, earlier this week, I heard someone describe the ET system as “creaking at the seams”.

Posted in Uncategorized | Leave a comment

It’s a shame about BEIS

So, just like James Bond, naming & shaming of employers who breach the national minimum/living wage is back. Well, almost back. Having been suspended since the last round of naming & shaming in July 2018, pending the outcome of a ministerial review, the scheme will resume shortly, according to the Minister’s answer to a written Parliamentary Question on 23 January, and a report in the Financial Times on 11 February.

And, with the outcome of the ministerial review having now been published (see pp 18-23), the only remaining question is whether the next round of naming & shaming will come before the UK release of No Time To Die on 3 April. Except … well, the ministerial review has resulted in a few changes to the scheme, and the TUC, for one, is not happy. In its Valentine’s Day card to BEIS, the TUC notes that:

A controversial change to the rules means the minimum arrears threshold for naming and shaming will rise from £100 to £500. If this threshold had been in place under the old rules, it would have excluded about a quarter of cases.

Going forward, it will mean employers who deliberately try to shave relatively small amounts off minimum wage pay stay under the radar. Think cafes and bars demanding unpaid trial shifts, or home care providers who do not pay for travel between clients, for example.

The new threshold is simply too high – ministers must think again.

In fact, if the new £500 threshold had been in place for the last three rounds of naming & shaming – in December 2017, March 2018 and July 2018 – it would have excluded 218 (32%) of the total of 678 employers named. However, between them, those 218 employers accounted for just £60,352.55 (1.4%) of the total of £4.3 million of arrears owed by the 678 employers named, and just 778 (1.6%) of the total of 47,967 workers involved.

The lists of named & shamed employers published by BEIS have always had a long tail of relatively minor offenders. And it is a moot point whether the naming & shaming of such relative small fry – in addition to them having to pay the arrears owed plus a financial penalty – actually achieves very much, in terms of overall deterrence.

Then again, those who would have escaped being named & shamed in the last three rounds include the Wolverhampton Wanderers football club (which owed a total of £450.79 to 17 workers), the Derbyshire County cricket club (which owed £225.16 to one worker), and the London Irish rugby union club (which owed £131.73 to one worker). So it’s not true to say that none of the ‘small fry’ are household names, and the TUC is right to highlight that the naming & shaming scheme will now be even less transparent that it was.

However, in my view, the raising of the threshold from £100 to £500 pales into insignificance when set against the fact that, as previously noted on this blog, large employers who ‘self-correct’ sometimes substantial sums of arrears when challenged by HMRC already get away with not being named & shamed for those ‘self-corrected’ arrears (even if they are named & shamed in respect of smaller sums of HMRC-enforced arrears).

Having been quietly introduced by BEIS and HMRC in 2015, and never formally announced, such self-correction by employers now accounts for almost half of the arrears identified, directly or indirectly, by HMRC enforcement of the minimum wage.

Over the three-year period 2015/16 to 2017/18, no less than £16.5 million (45%) of the total of £36.8 million of arrears identified through HMRC enforcement was identified through such ‘self-correction’ (see chart below, sourced from Figure 9 on page 29 of the Low Pay Commission’s April 2019 report, Non-compliance & enforcement of the National Minimum Wage).

Yet not a single employer has been named & shamed in respect of that £16.5 million of arrears, and not a penny has been imposed in financial penalties. Which means those employers have evaded (and the Government has kissed goodbye to) up to £33 million worth of financial penalties (the current penalty rate is 200% of the arrears owed). That’s more than the current annual budget for enforcement of the minimum wage.

Strangely, the TUC doesn’t appear to be the least bit concerned about this, as the issue is not even mentioned in its complaint about the new £500 threshold. But, as I have asked previously on this blog, is it fair that the very worst offenders are thus able to minimise both their ‘shame’ and the sum of penalties imposed? Do the public not deserve to know the full extent of an employer’s disregard of the law? As things stand, we do not know the name of a single employer involved in cheating their workers of that £16.5 million.

“I’ve never been too good with names,” sang Evan Dando and The Lemonheads on the title track of their fifth album It’s a shame about Ray in 1992. Someone at BEIS should have a listen. Because not only does their naming & shaming scheme lack transparency – essential to the very purpose of the scheme – but it is not even being applied to the biggest and worst offenders.

Posted in Workers' rights | Tagged , , | Leave a comment

New Year, new enforcement body?

So, Boris Johnson held and won the general election that, back in August, I predicted he might well hold and win on the back of a ‘deal’ with the EU27 that, at that time, most commentators thought less likely than a disastrous ‘no deal’ exit on 31 October. Sadly, the People’s Vote campaign is dead and buried alongside the political careers of some of its leading advocates. And the second Queen’s Speech in as many months is not simply more substantive than the first, but is brimming with Bills good, bad and ugly.

In short, life goes on – for policy wonks at least. And chief among the Queen’s Speech bills, for this policy wonk, is an Employment Bill that, according to the Government’s somewhat sketchy background briefing notes, promises:

●  Creating a new, single enforcement body, offering greater protections for workers.

●  Ensuring that tips left for workers go to them in full.

●  Introducing a new right for all workers to request a more predictable contract.

●  Extending redundancy protections to prevent pregnancy and maternity discrimination.

●  Allowing parents to take extended leave for neonatal care; and introducing an entitlement to one week’s leave for unpaid carers.

●  Subject to consultation, the Bill will make flexible working the default unless employers have good reason not to.

As noted previously on this blog, the proposal to create a new, single enforcement body not only has a long history featuring yours truly, but also appeared in the election manifestos of both Labour and the Liberal Democrats. Whether these near-identical (albeit somewhat vague) manifesto commitments will translate into cross-party parliamentary support for this element of the Bill remains to be seen, not least as the TUC and major trade unions such as Unite remain (unreasonably) hostile to the idea.

However, with organisations such as Acas and the Law Society welcoming the proposal in their responses to the BEIS consultation that closed in October, it may well be that a Fair Employment Agency is now a real possibility. Which is (probably) good news. For, as Acas notes in its response to the consultation, the potential benefits of such a single enforcement body include

“raising the visibility of enforcement options overall, as well as bringing greater clarity for both workers and employers. Having a single agency instead of three could make it more straightforward to signpost both workers and employers and raise their awareness of where to seek help and advice. This is particularly important for reaching high risk sectors and the more vulnerable workers in society, many of whom are likely to have limited understanding of their employment rights and possibly poor English, and are thus likely to need special help. As the [BEIS] consultation document makes clear, a single agency would also allow for more coordination across the different employment rights covered by the existing bodies and provide users with a more integrated service.”

That said, such a proposal is arguably at odds with suggestions of a post-Brexit erosion (or “bonfire”) of EU-derived (and even other) employment rights, and with the Johnson government’s somewhat less than concrete commitment to a ‘level playing field’ with the EU on such matters. For the whole point of a new, single enforcement body would be to protect and strengthen that level playing field, to the benefit of both workers and employers.

Other elements of the Bill, such as making flexible working the default and the proposed neonatal leave and pay – the latter a deserved policy win for the campaign group Bliss – may well receive cross-party support, while ministers are likely to face pressure from Labour to go further than planned on redunduncy protection, and adopt the so-called German model advocated by Maternity Action and others, which was pledged in Labour’s general election manifesto. And the inclusion of such measures in the Bill might even facilitate a much-needed debate about replacing the deeply flawed and chronically unsuccessful system of Shared Parental Leave.

So, many details yet to be seen, and many important questions still to be answered. But, after three years of brain-dissolving Brexit madness and policy-making constipation, (policy) life seems set to move on. Maybe.

Happy New Year.

Posted in Workers' rights | Tagged , , , | Leave a comment

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.

However, talk to almost any employment lawyer, and they will tell you that even this figure fails to reflect the long delays that they are currently experiencing in the processing of their ET cases. Which is setting off an alarm deep inside this wonk’s sleepy brain: We currently have a situation – a steadily rising number of claims (singles, at least), and a chorus of complaint (from employment lawyers) about the ET system being clogged up – that is not unlike the situation in 2011 – a steadily rising number of claims (all claims, at least – single claims/cases were actually falling, but no one yet knew), and a chorus of complaint (from employer bodies such as the CBI) about the system being clogged up – that was used by ministers to justify the proposed introduction of ET fees.

Posted in Justice, Workers' rights | Tagged , | Leave a comment

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

Posted in Uncategorized | Leave a comment