Workers’ rights: are we nearly there yet?

Back in May, as we waited to see whether the Queen’s Speech would include the repeatedly promised Employment Bill, I noted on this blog that the Government had no fewer than 12 outstanding key pledges on workers’ rights, some of which had been outstanding for some time. Seven of the 12 pledges had featured in the December 2019 Conservative manifesto and, as we approach the third anniversary of that general election, now seems a good time to review what progress has been made since May.

Two of the 12 pledges – the red ones in the chart above – have been abandoned. In July, the Government announced that it will not be progressing the pledge, first made in February 2018, to legislate to improve the clarity of the ’employment status’ tests. And BEIS officials have made it very clear that, despite the establishment of an Advisory Board on Pregnancy & Maternity Discrimination in late 2021, the Government will not be producing the Action Plan to make it easier for pregnant women and new mothers to stay in work that it promised in July 2019. Which may or may not be why BEIS expelled Maternity Action from the Advisory Board after just one meeting.

As noted on this blog in October, five of the pledges – the orange ones in the chart – are currently being progressed through Government bills masquerading as Private Members’ Bills (PMBs), introduced by Labour, Liberal Democrat, SNP and Conservative backbench MPs in June. And there is enough time for most if not all of these PMBs to reach the Statute Book before the end of the current parliamentary session in April or May next year: all five have already had their Committee stage, and are set to complete their passage through the House of Commons by early February, at which point they will go to the House of Lords.

However, Ernest Hemingway warned us not to confuse movement with action. There is no guarantee that each of the PMBs will reach the Statute Book – the necessary parliamentary time remains in the gift of ministers, who could pull the plug at any point, should they decide that it would be politically advantageous to them to hold the reforms back as ready-made manifesto commitments for a May 2024 general election. There are already suggestions that, as things stand, Rishi Sunak faces the prospect of going into that general election with “precious little to say”.

Furthermore, while Stuart McDonald’s Neonatal Care (Leave and Pay) Bill would amend the Employment Rights Act 1996 and the Social Security Contributions and Benefits Act 1992 to require the Secretary of State to make Regulations creating a statutory right to paid neonatal leave, and Wendy Chamberlain’s Carer’s Leave Bill would similarly amend the Employment Rights Act 1996 to require the Secretary of State to make Regulations creating a statutory entitlement to unpaid carer’s leave, Dan Jarvis’s Redundancy Protection (Pregnancy and Family Leave) Bill would only give the Secretary of State the power to make Regulations extending the scope of the existing MAPLE Regulation 10 protections. The Secretary of State would remain free to not use that power (or to do so only at a time of his or her choosing).

Since Dan Jarvis’s PMB was introduced in June, it has emerged that Ministers are proposing to include, in the necessary Regulations, a six-week qualifying period for the protection that would be extended to new parents after their return to work from a period of leave. However, this proposal – which would set a worrying policy precedent – has not yet been publicly set out in writing, and the Minister somehow failed to mention it during both the Second Reading and the Committee stage debates.

During the latter debate, on 2 November, Dan Jarvis assured MPs that BEIS are consulting members of the above-mentioned Advisory Board – that is, the Advisory Board from which BEIS expelled Maternity Action – about this qualifying period (and the PMB’s impact assessment, published in August, wrongly implies that at least some such consultation had by then already taken place). However, it is not at all clear why such consultation, on an important point of policy, should be confined to the members of the Advisory Board, and be conducted behind closed doors. But that’s the kind of thing that happens when you’re a backbencher and you introduce a PMB that you didn’t write yourself, and over which you have no control.

A sixth Government bill masquerading as a PMB – Yasmin Qureshi’s Employment Relations (Flexible Working) Bill – would amend the Employment Rights Act 1996 to make a number of welcome but relatively minor reforms of the administrative process underpinning the existing right to request flexible working (such as allowing employees to make two flexible working requests in any 12-month period, instead of the one currently allowed). But it would not make the right to request flexible working a Day One right – as the Government proposed in its September 2021 consultation paper – let alone deliver the Government’s December 2019 manifesto pledge to make flexible working the default. It seems we have to await the Government’s response to the 2021 consultation to learn whether ministers plan to make the right to request a Day One right, and during the PMB’s Second Reading debate on 28 October the minister could say only that the Government will bring forward that response “shortly” (which may or may not be more imminent than ‘in due course’).

As for the other four outstanding pledges, they remain, well, outstanding. Evaluating the Shared Parental Leave scheme remains “an important part of the policymaking process”, according to the Minister, but it is now more than five years since the evaluation was first announced to MPs, and we are still waiting for the evaluation report. Apart from anything else, this means that the 2019 BEIS/DWP Maternity & Paternity Rights Survey – part of a series that has been conducted since the late 1970s, and which was last conducted in 2009/10 – remains under wraps, despite the survey fieldwork having been completed by November 2019. Because, for reasons known only to BEIS ministers, the Survey report cannot be published until the Shared Parental Leave evaluation report is published.

There are no signs of the Government introducing the new right to request a more predictable and stable contract that was first promised in February 2018, despite the Minister confirming as recently as late October that the Government “remains committed” to this pledge. Similarly, there are no signs of any progress on the December 2019 pledge to “make it easier for fathers to take paternity leave”. And there’s been no real news on the promised Single Enforcement Body since June 2021.

Furthermore, these are only the most significant commitments on workers’ rights that the Government has made, and which remain outstanding. For example, on 24 November, a coalition of organisations wrote to business secretary Grant Shapps, urging the Government to act on its March 2022 commitment to remove the ‘family worker exemption’ from the National Minimum Wage Regulations.

In December 2019, the Tories sought to portray themselves as the workers’ party, with a raft of broadly welcome manifesto commitments on workers’ rights. In 2024, they may well want to do so again. So watch this space.

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Good Law Project: Binfire of the vanities

On 1 November, I noted on Twitter that the month in which we celebrate the glorious failure of the Gunpowder Plot was going to be a big one for Jolyon ‘Che’ Maugham and his (Not Very) Good Law Project, what with the resumption – on 7-8 November – of the Tribunal hearing of the nasty, illiberal attack by Mermaids and the GLP on the LGB Alliance, and – on 29-30 November – the High Court hearing of another of their gender woo-woo cases, Trans healthcare. And in the latter case the judge had, in May this year, somewhat hesitantly granted permission to apply for judicial review while noting “the futility of any declaratory remedy” sought by the GLP.

In addition, on 8-9 November, the Court of Appeal would hear the GLP’s appeal against the High Court’s dismissal, in April, of the GLP’s attempt to challenge ministers’ use of personal emails and messaging apps to conduct government business. And, from 10 November, thanks to a handful of large, anonymous and curiously-sized donations to the associated crowdfunder, the GLP would be funding the defence in court of a libel claim brought against Nina Cresswell over allegations she has made on social media, and trying to “establish when victims can rely on a public interest defence”.

And so it proved: November was a big, bad month for the (Not Very) Good Law Project.

Only a die-hard Jolyonista would argue that the two days of legal submissions that concluded the protracted Tribunal hearing of the attack on the LGB Alliance went well for Mermaids and the GLP. And even he/she/they/fae/zir would have to concede that the two-day Court of Appeal hearing of the ‘ministerial emails’ appeal was not the GLP’s finest hour in court. As one observer noted on Twitter: “Textbook poor lawyering: no draft Order, no clear architecture, judges’ concerns not being met. Comes across as very sloppy.”

However, thanks to some heavy promotion by the GLP, over the five days up to and including the Court of Appeal hearing the associated GLP crowdfunder raked in more than £45,000 from some 2,250 new donors, to add to the some £135,000 previously raised from some 5,550 donors. By 4:15 pm on 8 November, when the first day of the hearing came to an end with the Master of the Rolls offering the GLP’s counsel an extra 15 minutes at the start of the second day to “have another go at making [your] case” – the clear implication being that she had so far failed to do so – the total stood at £179,111. And by the time GLP closed the crowdfunder, a few hours after the end of the second day, it had garnered a stonking £180,203 from 7,823 donors.

One has to wonder how much understanding of the legal merits of the GLP’s appeal those 2,250 new donors had when parting with their cash. In particular, you have to wonder how many fully appreciated that, in April, the High Court drove a steamroller back and fore over the GLP’s case, before ordering the GLP to pay £125,000 of the Government’s legal costs. Or that, in October, in the case of Abingdon Health, the GLP was given another kicking by the High Court on the issue of standing.

Yet only the day before the Court of Appeal hearing, the Great Crowdfunder himself was pontificating on Twitter about “the tension between raising money and being straight about a [crowdfunded] case’s legal merits”. Hmmm.

On 22 November, the GLP revealed that its much-hyped legal action against energy regulator Ofgem has fizzled out, on account of new legal advice to the GLP that their claim has no merit. There was never a Crowdjustice crowdfunder for this case, but since 2 September there had been a dedicated GLP donation page (which – shamelessly or incompetently – remains open, so do feel free to “support the fight for fairer energy prices” with your debit or credit card). However, unlike Crowdjustice crowdfunders, this page doesn’t show the running total of donations made, so we’ll never know how much the GLP raked in for this performative act of futility. Unless they tell us, of course. But Jolyon doesn’t really do transparency.

On 25 November, Jolyon’s great buddy Susie Green, CEO of the troubled and troubling Mermaids, had a conscious but abrupt uncoupling from the organisation she had led for six years. In the words of Hadley Freeman, “all the journalists, teachers, editors and activists” – including the “full-time tweeter, part-time QC and occasional fox murderer”- who “endorsed Green’s obviously ludicrous ideas and shouted down anyone who didn’t [now] need to take a long look at their judgement, their motives and themselves.”

While the three GLP crowdfunders for their gender woo-woo cases – the Mermaids/GLP attack on the LGB Alliance, the Trans healthcare challenge and the grandly-named Legal Defence Fund for Transgender Lives – had between them raked in a whopping £318,620 from more than 9,350 donors by 1 November, the cases haven’t been to the liking of every member of the GLP’s base. On 2 November, one (now former) GLP supporter stated on Twitter: “I stupidly set up a direct debit to [GLP] for Covid contracts scandal. Had no idea about the nature of other cases in the background. Direct debit now cancelled and money being diverted to LGB Alliance. GLP take note. I can guarantee that most of your money comes from women.”

Indeed, the LGB Alliance is not the only organisation that Jolyon and the GLP have tried to punish for wrongthink on gender woo-woo. Those “other cases in the background” include an attempt in June this year by the GLP and Stonewall to persuade the UN body that oversees national human rights institutions to downgrade the Equality & Human Rights Commission. It’s not at all clear how that would have benefitted “marginalised and excluded groups throughout the UK”, but fortunately this was just one more hubristic GLP campaign that ended in failure.

On 29 November – the first day of the High Court hearing of the Trans healthcare case – the judge appeared to echo the concern of his judicial colleague in May about the apparent futility of the litigation, noting that the declaratory relief sought by the claimants would “not advance the position of the claimants at all, as it would not put the claimants higher on the waiting list”. In other words, while the litigation may result in yet another near-worthless bit of paper that Jolyon can wave around, it seems unlikely to make any material difference to trans people seeking NHS treatment.

Maybe December will be a better month for the GLP. And November wasn’t all bad news for the GLP: their open Crowdjustice crowdfunders raked in a cool £98,920. That total includes the above-mentioned £45,423 for the ‘ministerial emails’ appeal, £10,457 for the relatively new ‘sewage dumping’ case, and a stonking £32,423 for the latest money-spinner, Tufton Street, which launched on 25 November.

[Update, 2 December: Well, December didn’t get off to a great start for the GLP, as yesterday their “textbook poor lawyering” in the ‘ministerial emails’ case resulted in the Court of Appeal dismissing their appeal and claim for judicial review. And it is clear from the judgment that the three judges were also not terribly impressed by the GLP’s lawyering, and in particular the GLP’s failure to make clear what relief it was seeking from the Court: “The fact that a claimant is unable or unwilling to particularise the relief that they seek, may be an indication that the claim should not be pursued.” Ouch.

And earlier today the Charity Commission announced that it has opened a statutory inquiry into Mermaids, due to “newly identified issues about the charity’s governance and management”. The words ‘stones’, ‘glass’ and ‘houses’ come to mind. Maybe it wasn’t such a good idea for Mermaids to accept that “informal advice on law and comms” from Jolyon.]

Anyway, here’s my updated Table of Failure and Futility, showing the sum raised by and outcome to date of the GLP’s 52 Crowdjustice crowdfunders since 2017. And, if you want, you can compare it against the GLP’s own Spreadsheet of Glorious Victories, which on 29 November they (finally) updated to the end of September. I’ll be taking a closer look at that Spreadsheet on this blog in due course.

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Come together: the ballad of the PMBs

Last month, I noted on this blog that no fewer than six Government Bills masquerading as Private Members’ Bills are progressing through Parliament, to make up for the Government having shelved its repeatedly promised Employment Bill. And there has been a bit of a common theme to the Second Reading and Committee stage debates.

With apologies to the Beatles.

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Good Law Project: funny money

Back in November 2020, when Jolyon Maugham and his (Not Very) Good Law Project were launching new crowdfunded cases at the rate of more than one a month, the Guardian purred that the GLP “relies on crowdfunded donations of £10 or £20 from thousands of sympathetic supporters to pursue its cases”. But that’s not entirely true.

On 11 October 2022, the GLP launched a new crowdfunder – their 50th – in support of legal action on behalf of Nina Cresswell, who is being sued by a man she has publicly accused of sexually assaulting her 12 years ago. This stated that “so far we have spent £8,583 of our own funds getting legal advice for [Ms Cresswell], and defending her in court will cost a further £50,000”. And it set out an initial target of £30K, to be met within 30 days: “Your card will only be charged if the case meets its target of £30,000 by 1pm [on 10 November 2022]”.

In short, were that £30K target not to be met within 30 days, the donations pledged would not be drawn down, and yet another GLP campaign would have flopped. In June this year, a new GLP campaign to tackle ‘racism in schools’ was quickly abandoned after the associated crowdfunder failed to reach its initial £30K target, and the £13,690 of donations pledged were not drawn down.

Things got off to a flying start, as they usually do with such crowdfunders, and within a week – by 17 October – the Cresswell crowdfunder had raised a total of just under £10,600 from some 450 donors. But by 20 October the £10 and £20 pledges were drying up, and the crowdfunder had pretty much stalled at £10,767 from 498 donors (an average pledge of £21.62). At that point, the crowdfunder still needed more than £900 worth of pledges, every day, for another 21 days, if it were to reach its £30K target by 1pm on 10 November. But only a handful of small pledges were being made each day.

In other words, within ten days of its launch the crowdfunder was on track to fail to reach its initial target. So it was fortunate that, on 20 October, “someone” (Donor #499) anonymously pledged £4,233, the exact sum required to take the total to £15,000. And that, just three days later, after ten (small) pledges had nudged the total to £15,315, “someone” (Donor #510) anonymously pledged another £1,675, bumping the total to an even more respectable £16,990. (Maybe they intended to bump it to £17,000, but got their sums wrong. Whatever, “someone” soon tidied things up with a £10 pledge.)

These large, anonymous and curiously-sized pledges were also conveniently timed. Because, the next day, Monday 24 October, the GLP (or an ally) appears to have orchestrated some kind of ‘push’ of the crowdfunder to GLP supporters and/or potential donors, resulting in a steady stream, from about 2pm, of more than 150 small pledges (four out of five were for £25 or less, and the largest was for £100). Shortly before 10pm that evening the total passed £20,000 (from some 670 donors), but within 48 hours – by the morning of 26 October – things had once again settled down, with pledges at a total of £21,581 from 750 donors.

With 15 days to go, that still required a daily average of more than £550 worth of new pledges, if the crowdfunder were to hit its initial target of £30K. And, with the average pledge since Donor #510’s very generous £1,675 running at just £19, that implied another 30 pledges per day. But from 1pm on 26 October to 1pm today (27 October), the crowdfunder raked in just £385, from 20 donors.

So, once again, it was fortunate that, shortly before 2pm today, “someone” (Donor #781) anonymously pledged a stonking £7,824, the exact sum required to take the total to £30,000 (before Graham got in first with his £5 pledge).

As a result, the crowdfunder reached its £30K initial target with almost two weeks to spare. But no less than £13,732 (46%) of that £30K came from just three (presumably wealthy) donors. Though 778 little people did help out with their “£10 or £20 donations”.

Anyway, why not match “someone’s” donation of £7,824? Then reward yourself with a glass of Vin Santo and some cantuccini. Just be careful not to get any in your USB ports.

Update, 30 October: Well, “someone” (Donor #812) took me literally and, early today, they generously donated £8,550, the biggest donation yet and – once again – the exact sum required to take the total to the milestone of £39,000. As a result, no less than £22,282 (a whopping 57%) of that £39K has come from just four (presumably wealthy) donors. I do hope this “someone” rewarded themselves with a glass of Vin Santo.]

Update, 2 November: Well, unlike the “donations of £10 and £20” – which have now almost completely dried up – the large, anonymous and curiously-sized donations keep coming. Of the £2,000 that’s been added to the crowdfunder’s running total since the £8,550 donation on 30 October, no less than 85% has come from just two of the 14 new donors – Donor #818 and Donor #826 – who pledged £890 on 31 October and £800 on 2 November respectively. (Excluding the six large pledges highlighted above, the average pledge to date is £20.76).

Update, 10 November: Today, at 1pm, was the original deadline for the crowdfunder to reach its critical, initial target of £30K. As noted above, the total amount pledged passed £30K almost two weeks ago, and at 1pm today it stood at £41,285. But no less than £23,972 (a whopping 58%) of that £41,285 came from just six anonymous pledges by up to six presumably wealthy donors. And, were it not for those six large pledges, then – other things being constant – the crowdfunder would have failed to reach its critical £30K target, the £17,313 of small pledges by 836 donors would not have been drawn down, and the Good Law Project would have been not very good, again.

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Workers’ rights: Back to the future of December 2019?

So, with the “new era” of Liz Truss and Kwasi Kwarteng having lasted all of seven weeks, Rish! Sunak is back in Downing Street. And, shortly before being clapped through the lobby of Number 10 by the waiting officials and advisers, the shiny new Prime Minister used his first address to the nation to claim as his own the electoral mandate secured by Boris Johnson in December 2019:

The mandate my party earned in 2019 is not the sole property of any one individual, it is a mandate that belongs to and unites all of us. And the heart of that mandate is our manifesto. I will deliver on its promise.

Which, to this employment policy wonk at least, begs the question: Will Rish! Sunak deliver on the outstanding 2019 manifesto promises on workers’ rights, perhaps through an Employment Bill?

And why not? Dominic Raab is back at the Ministry of Injustice, searching through the bins for a discarded copy of his almost palindromic Bill of Rights Bill. Suella Braverman is back at the Home Office, searching for the miraculous policy that will ‘reduce net migration to tens of thousands’. And Jacob Rees-Mogg is back on the backbenches, where he belongs. So, why can’t we have the repeatedly promised Employment Bill back?

When I posed this question on Twitter earlier today, Daz Newman was quick to point out that some of those 2019 manifesto promises on workers’ rights are currently “making their way through Parliament as Government-sponsored Private Members’ Bills”. And it is indeed the case that, days after the (third) shelving of the Employment Bill in May this year – and as anticipated on this blog – the Government whips worked hard to sell a number of Government hand-out bills to some of the MPs who had just ‘won’ a top slot in the annual Private Members’ Bill (PMB) ballot. As a result, on 15 June no fewer than six Government Bills masquerading as PMBs were introduced by Labour, Liberal Democrat, SNP and Conservative backbench MPs.

Stuart McDonald’s Neonatal Care (Leave & Pay) Bill had its Second Reading on 15 July, and completed its Committee stage on 7 September. Dean Russell’s Employment (Allocation of Tips) Bill also had its Second Reading on 15 July, and completed its Committee Stage on 12 October (by which time Virginia Crosbie had taken over sponsorship of the PMB, due to Dean Russell having been made a BEIS minister by Liz Truss). Last week, on 21 October, Dan Jarvis’s Redundancy Protection (Pregnancy & Family Leave) Bill, Wendy Chamberlain’s Carer’s Leave Bill, and Wera Hobhouse’s Worker Protection (Amendment of Equality Act 2010) Bill all had their Second Reading (an event the Radio 4 Today programme accurately described as “a five-hour group hug”). And Yasmin Qureshi’s Employment Relations (Flexible Working) Bill is scheduled to have its Second Reading this Friday.

The three-hour Second Reading debate of Dan Jarvis’s Redundancy Protection PMB was notable for the number of MPs who expressed support for the Bill while at the same time making it clear they much prefer the so-called German model of redundancy protection repeatedly proposed by Maternity Action, Maria Miller MP and many others since 2016, and which is the stated policy (and 2019 manifesto commitment) of Dan Jarvis’s own Labour Party. As Maternity Action noted in their briefing for MPs, Dan Jarvis’s PMB will “simply entrench a broken system that does not work and does not protect women”, while the so-called German model is – in the words of Bob Stewart MP – “flipping good”.

The Second Reading debate of Wendy Chamberlain’s Carer’s Leave PMB was somewhat shorter – under an hour – while that of Wera Hobhouse’s Worker Protection PMB was so short – a mere 20 minutes – that, apart from Ms Hobhouse, the shadow minister and the minister, only one MP got to speak. Welcome to Democracy 2022.

However, even if these Government Bills masquerading as PMBs make it as far as the Statute Book – and most stand a very good chance of doing so, now that a snap General Election seems to be out of the question – that still leaves the following 2019 manifesto promises outstanding:

  • Create a single enforcement body to “crack down on any employer abusing employment law”. As previously noted on this blog, in June 2021 the Government confirmed this commitment “as set out in the Government’s manifesto. The new body will not just bring together three existing bodies into a single, recognisable organisation, it will deliver a significantly expanded remit. As a result, more vulnerable workers across the country will receive money that is owed to them.” This is arguably the most significant of all the 2019 manifesto commitments on workers’ rights. But then I would say that, as the creation of a single enforcement body was my idea.
  • Establish a new right for workers to “request a more predictable contract and other reasonable protections”. Just this week, business minister Dean Russell confirmed to MPs that the Government “remains committed” to introducing such a right.
  • Look at ways to make it easier for fathers to take paternity leave. As noted recently on this blog, almost three years on, there is no evidence of ministers having since done any such ‘looking’, and certainly no policy proposals have been forthcoming.

In addition, the 2019 manifesto promised a consultation on making flexible working the default and, while that consultation was undertaken in late 2021, we await the outcome and any progress towards the promised goal (Yasmin Qureshi’s Flexible Working PMB will simply make a number of welcome but relatively minor changes to the existing right to request flexible working). [Update: During the 90-minute Second Reading debate of Qureshi’s Flexible Working PMB on Friday, the Minister indicated that the Government will publish its response to the 2021 consultation “shortly” – which may or may not be more imminent than ‘in due course’. Significantly, perhaps, of the 11 MPs – other than Qureshi herself, the Minister and the shadow minister – who contributed to the debate, ten were Conservatives. It’s almost as if the PMB reaching the Statute Book matters more to the Conservatives than it does to Qureshi’s own Party.]

And then there’s the things that weren’t in the 2019 manifesto, but should (and indeed might) have been in the Employment Bill, such as reform of the chronically failing Shared Parental Leave scheme, and the extension of the Employment Tribunal time limit recommended by the Law Commission in April 2020.

So, yeah, come on Rish!, take us back to the future of December 2019!

[Update: On 28 October, during his first public outing as Prime Minister – a visit to Croydon University Hospital – Sunak the Sensible repeated his pledge to deliver “on the promise of the manifesto that we were elected on, with very strong support, in 2019”.]

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Take-up of statutory paid paternity leave: the Daddy of all bogus statistics

“Only a third of eligible fathers taking paternity leave” (People Management)

“Just a third of eligible fathers take paternity leave” (HR News)

“Only one in three fathers take paternity leave, research suggests” (Daily Mail)

“Just a third of eligible new fathers took paternity leave in the last year” (HR Magazine)

“Only a third of eligible new fathers are taking paternity leave” (Jersey Evening Post)

If these headlines – all from July this year – feel a bit familiar to you, that’s because you have seen them before. You saw them last year, and the year before that, and the year before that. Because, as previously noted on this blog, they are all based on a press release that law firm EMW regurgitates every summer. Admittedly, EMW do throw in a bit of variation: one year it’s ‘Only one third of fathers are taking paternity leave!’, and the next year it’s ‘Two thirds of fathers are not taking paternity leave!’ Clever!

So, for example, here are the Independent and HR News in the summer of 2019, reporting that “fewer than [a] third of new fathers take paternity leave”. And here are the Telegraph and HR News in the summer of 2020, reporting that “two thirds of new fathers are still not taking paternity leave”. How great it must feel to be a ‘journalist’ at HR News.

Things got a little more interesting in 2021, when the impact of the Covid19 pandemic and the £65bn furlough scheme allowed EMW to rebrand the same set of raw HMRC data, obtained by an annual Freedom of Information request, as “paternity leave take-up drops to lowest level in 10 years”. This secured headlines in the Independent, and in the specialist journals Personnel Today and People Management. The ‘journalists’ at HR News must have been on furlough, or something.

However, with new fathers no longer able to choose between taking one or two weeks of statutory paternity leave on £150 per week or continuing on furlough on 80-100% of their normal wages, the number of statutory paternity pay claimants has bounced back, and this summer EMW reverted to “Only a third of eligible new fathers are taking paternity leave”. Which, as well as securing the headlines above, seemingly led the Fatherhood Institute to note that “latest figures suggest that only a third of fathers take paternity leave”.

Which is a little odd, because in a 2017 report the Fatherhood Institute noted that “large surveys covering a range of employment sectors consistently show between two-thirds and three-quarters of eligible fathers taking some statutory paternity leave, with 55% taking at least [sic] their full ten days”.

So, what is the rate of take-up of statutory paid paternity leave? Well, to answer that question, we need two bits of information: the number of new fathers who take statutory paid paternity leave (the numerator): and the number of new fathers who are eligible to take statutory paid paternity leave (the denominator).

The numerator is easy: HMRC has routinely provided the data in response to numerous Freedom of Information requests by the law firm EMW and others, including yours truly. [Update: The data is now publicly available in this Answer to a Parliamentary Question.] Here’s a table:

(It’s worth noting that these figures include both ‘fathers’ and a small number of same-sex partners of the birth mother. In 2021/22, for example, 2,200 (1.1%) of the 204,200 claimants were female. However, this detail has never troubled EMW or any of the ‘journalists’ who have typed up EMW’s press releases since 2019, so I am parking it too. Furthermore, the figures include a degree of double counting: HMRC has confirmed that “where a given spell of [statutory paternity pay] extends across [the boundary between] two years, the claimant will be included in both years’ figures”. However, this double counting matters more when we consider the number of SMP claimants – see below.)

The denominator, however, is tricky, as no one knows how many new fathers are eligible to take statutory paid paternity leave each year [and, since I posted this blog, the new BEIS minister, Kevin Hollinrake, has confirmed that the Government has not made any estimate of the number]. To arrive at their take-up rate of ‘one third’, EMW have assumed that the number of eligible new fathers is the same as the number of new mothers who start on statutory paid maternity leave, which – based on the raw data provided to them by HMRC – EMW have taken as 654,000 in 2018/19, 649,000 in 2019/20, 652,000 in 2020/21, and 636,000 in 2021/22.

As previously noted on this blog, there are several reasons why this assumption is not necessarily valid, but it is certainly one of several approaches to estimating the number of fathers who are eligible for statutory paternity leave that are available to us. Though we need to add to the figures in the previous paragraph at least some of the 50-60,000 new mothers who start on Maternity Allowance each year, as the HMRC figures used by EMW are only for Statutory Maternity Pay (SMP).

However, the raw HMRC figures for SMP used by EMW do not show the number of women who started on SMP in that year. Because – as explained previously on this blog – the raw HMRC figures include a significant amount of double counting.

Furthermore, if our starting point is the partners of women who start on statutory paid maternity leave (on either Maternity Allowance or SMP), then we have to allow for the fact that a significant proportion of those fathers are not eligible for statutory paid paternity leave. In some cases, this is because the father is not in employment (in recent years, the employment rate in the 25-34 and 35-49 age groups has been about 85%), and in others it is because the father is working, but has not worked for their current employer for long enough (at least 26 continuous weeks) or is self-employed.

The Fatherhood Institute cites a 2017 analysis by the TUC that it says indicates that “two out of five working fathers [i.e. 40%] are ineligible either because they are self-employed or because they have not worked for their employer for long enough”. In fact, the TUC itself suggested that 25% – not 40% – of working fathers are ineligible.

And, if we (i) adjust the raw HMRC data on SMP starts for double counting; (ii) add Maternity Allowance starts; (iii) apply the male employment rate (85%); and (iv) apply the TUC’s ineligibility rate of 25%, we get a chart showing ‘take-up of statutory paid paternity leave among eligible fathers’ that looks like this:

Now, I’m going to stick my neck out and suggest there is something wrong here. I don’t think take-up of statutory paid paternity leave among eligible fathers averages 92% (after excluding the atypical year 2020/21). One possibility is that the TUC’s suggestion that 25% of working fathers are ineligible for statutory paid paternity leave is wide of the mark. And another is that the number of women who start on statutory paid maternity leave is not as good a starting point for estimating take-up of statutory paid paternity leave among eligible fathers as EMW and everyone who cites their figures thinks it is. Yes, I’m looking at you, HR News.

An alternative proxy for the number of new fathers who are eligible for statutory paid paternity leave might be the number of new fathers who are eligible for shared parental leave. We don’t know the latter number either, but we do at least have an official Government estimate of it (see p29), which is a maximum of 285,000 per year. There are a number of reasons why the number of new fathers who are eligible for statutory paid paternity leave is likely to be different to the number who are eligible for shared parental leave, but using that 285,000 as a proxy does give us a somewhat less ridiculous-looking chart (note the slight change of scale on the right-hand side, made for aesthetic reasons):

Yes, that’s an annual average (excluding the atypical 2020/21) of at least 74% (it will be higher, if the actual number of eligible fathers is less than the maximum of 285,000 estimated by the Government). And 74% is a bit more than ‘one third’.

But if you don’t like that approach, I have others! One would be to start with the number of live births, reduce that by the proportion of new mothers who are single parents (BEIS has used 16%, but this may be out of date), apply the male employment rate (85%), and then apply the TUC’s ineligibility rate of 25%. This gives us a chart that looks like this (again, note the slight change of scale on the right hand side of the chart):

Excluding the atypical 2020/21, that’s an annual average of 53%. And there’s good news! Thanks to the falling number of live births, the trend is upwards: in 2021/22, by this measure, take-up was 56%. Which is quite a bit less than 74%, obviously. But still quite a bit more than ‘one third’.

If I had to put money on it, I’d say that take-up of statutory paid paternity leave among eligible fathers is probably somewhere between 53% and 74%, and most likely in the region of 60%. Which (a) is closer to the findings of those large surveys cited by the Fatherhood Institute; and (b) is not bad, when you consider the pitiful rate at which such statutory leave is paid (currently, just £156.66 per week, equivalent to less than half of the National Minimum Wage). Given the ‘health and safety’ purpose of such leave – to enable the father or other second parent to support the birth mother at and immediately after the birth – there is a very strong case for it to be paid at 90% of average weekly earnings, like the first six weeks of Statutory Maternity Pay, rather than at the flat rate.

That would help push take-up among eligible fathers towards 100%. But we also need to shrink that 25% of working new fathers (or whatever the proportion is) who are not even eligible for statutory paid paternity leave.

In December 2019, the Conservative general election manifesto committed the now lamented Boris Johnson-led Government to “look at ways to make it easier for fathers to take paternity leave”. However, three years on, there is no evidence of ministers or officials having since done any such ‘looking’, and certainly no policy proposals have been forthcoming. Maybe in due course.

On the other hand, in its September 2021 Green Paper on employment rights, the Labour Party committed the next Labour government to “extending statutory maternity and paternity leave”, which I am reliably informed means ‘extending eligibility’ to those who currently miss out on such entitlements, including by making them ‘Day One’ rights.

The way things are going, that next Labour government could be along quite soon. But let’s at least make 2023 the year when everyone throws EMW’s annual press release about take-up of paternity leave straight in the bin. Because it’s pretty clear that, whatever it may be, the rate of take-up of statutory paid paternity leave is not “only a third”.

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Oops! The Not Very Good Law Project has lost. Again.

Yes, it’s not the result that Jolyon Maugham KC and his (Not Very) Good Law Project were hoping for, but today the High Court flatly rejected claims by the sanctimonious Jolyon and his dark money-funded GLP that the Government’s purchase in 2020 of one million Covid19 antibody tests from the specialist rapid test manufacturer Abingdon Health was a crime against democracy, or something. (Full judgment here, and a good short summary of the judgment here).

For this particular exercise in futility the GLP raked in a stonking £160,744 from more than 6,900 donors (including a very generous £700 from ‘Bruce’ as recently as 1 September), but we have no idea how that money has been spent, as Jolyon doesn’t do transparency. Maybe we’ll find out more from the fox-battering but mermaid-loving Jolyon’s forthcoming booky wooky, Apricots Plopping.

Whatever, this latest defeat pretty much brings down the curtain on Jolyon’s hubristic attempt to destroy Boris Johnson’s late lamented Government over its handling of the Covid19 pandemic. Between April 2020 and January 2022, Jolyon and the GLP launched no fewer than 18 Covid19-related Crowdjustice crowdfunders, and those crowdfunders have (so far) raked in a total of £2.437 million.

Yet only two of the associated legal challenges have resulted in a legal ‘win’ for the GLP, and in each case all that was ‘won’ was a near-meaningless ‘declaration’ by the High Court: one in February 2021 that the Government had not fully complied with transparency rules on the publishing of Covid19-related contracts; and one in January 2022 that the Government’s high priority lane for the awarding of such contracts, while not unlawful, was “in breach of the obligation of equal treatment”.

No allegedly bent minister has been required to apologise, let alone resign, and not a penny of allegedly misspent taxpayers’ money has been recovered from any alleged crooks or cronies. However, that £2.437 million is helping the GLP’s now 30+ employees – a number of whom are on £84,000 salaries – to live their values in relative comfort.

Graffiti at the abandoned Hotel Zagreb, Split, Croatia, September 2022

Two more of the 18 Covid19-related crowdfunders – Bunzl Healthcare and Immensa Testing – remain open, but neither has raised a penny for months now, and in each case the associated legal action appears to have run into the sand, with little if any prospect of ultimate glory for Jolyon and the GLP. And, while the associated crowdfunder closed in March, having raked in a cool £100,145, an on-off legal challenge to the Metropolitan Police investigation of ‘partygate’ continues, but has reached the stage where the Met’s lawyers are openly laughing at Jolyon and his co-claimant Brian Paddick.

Elsewhere, those with money to burn can still donate to three open crowdfunders on transgender issues, including a legal challenge (launched in October 2021) to delays at the dysfunctional and now disgraced Tavistock Gender Identity Development Service (GIDS) that is scheduled to be heard by the High Court in late November, just four months before GIDS (rightly) has its doors shut for good. That’s £45,085 that could and surely should have been put to better use.

Similarly, an ugly, illiberal legal challenge to the charitable status of an LGB campaign group that dares not to share Jolyon’s belief in gender woo-woo has so far splurged another £83,049 that could have been better spent. This legal challenge was part-heard by the Tribunal on 9-15 September, and is scheduled to conclude in early November; in the meantime, the GLP’s seedy co-claimants Mermaids just get seedier and seedier. And the GLP’s grandly-named Legal Defence Fund for Transgender Lives has so far gobbled up an astonishing £189,642, most of which has already been blown on three ultimately futile legal actions in defence of the services provided by the “not safe” for children and now doomed GIDS.

In contrast, two other open crowdfunders – Public spaces (launched in May 2022) and Surrey Hills (July 2022) – are stalled at a relatively modest £33,871 and £33,008 respectively. And, with an annual income of some £4.5 million from direct donations and grants at its disposal, and with more than £4 million of reserves in the bank, you have to wonder why the GLP is even bothering to crowdfund £30K for legal challenges to local planning decisions.

Presumably, with much of the leg work having been done by others long before Jolyon and his ego climbed aboard, the hope is that anticipated court wins in these cases will provide Jolyon and the GLP with some much-needed green shading for their Spreadsheet of Glorious Victories. [Update: Or maybe not. On 12 October, the High Court refused permission to apply for Planning Statutory Review in the Surrey Hills case.]

On the other hand, in recent weeks Jolyon and the GLP have raked in £50,029 for a threatened judicial review that Full Fact and others believe might well be wide of the mark. [Update: This crowdfunder was closed by the GLP on 24 October, having reaped £56,142 from 2,525 donors.]

Whatever, here’s my updated Table of Failure and Pointlessness, showing the sum raised and outcome to date of all 49 GLP crowdfunders since 2017:

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Good Law Project: the rise and fall of the Jolyon Empire

With Jolyon Maugham KC of the (Not Very) Good Law Project at risk of losing his coveted title of Public Enemy Number One to Chancellor Kwasi Kwarteng, now seems a good time to update the tables set out in my blog post of 9 May, charting the impact of the GLP over three distinct eras since 2017.

As noted in my blog post of 12 June, we now have a little more information about some of the older GLP legal claims, and of course since then there have been a number of developments, including the launch of three new GLP crowdfunders, the withdrawal by the GLP of one legal claim (Michael Saiger), and the dismissal by the High Court of another (Net Zero – see paras. 261-275).

In addition, the GLP and their seedy co-claimants Mermaids have been having a torrid time with their illiberal but thankfully self-destructive challenge to the charitable status of the LGB Alliance, which will conclude in November. And it may not be long until I can add some colour to the rows for Abingdon Health, Trans healthcare, and Immensa testing.

The Golden Years (2017-19)

Thank goodness Jolyon got the Article 50 notification revoked and the prorogation of Parliament overturned, eh? Otherwise we might have left the EU and be living under a PM even worse than Boris Johnson. Oh, hang on …

The Manic Covid Era (2020-21)

Yes, that’s £8.98 million, and not a lot of green shading. Cherish those two High Court declarations! The life of every citizen is so much better for them.

[Update, 7 October: GLP’s claim in Abingdon Health was dismissed by the High Court today.]

(NB: Net Zero has moved to 2022, where it should have been all along.)

The Year of Living Dangerously (2022)

A mere £258K (and no green shading). Thank goodness those direct donations and grants are still pouring in, eh? The GLP now has more than 30 staff and a number of them are living their values on an annual salary of £84K (the same as an MP).

GLP organogram from the job pack, Head of Communications (maternity cover), 26 September 2022
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A general election crib sheet for candidates

Yesterday, Guardian columnist Martin Kettle argued persuasively that, if Liz Truss wins the Tory leadership contest on 5 September and becomes Prime Minister, she will have to call an early general election. And, a few hours later, woke Twitter was ablaze after both Truss and Rishi Sunak answered ‘no’ when asked the simple question ‘Is a trans woman a woman?’ at a hustings.

All of which got me thinking about what we can expect the candidates to face, should Martin Kettle be proved right (as I think he will be). So, as it is my mission in life to be helpful to politicians, I have devised the following handy crib sheet. You’re welcome, and good luck.

What is a woman? A woman is an adult human female.

How much does a pint of milk cost? About 85p, which is an increase of more than 100% in just one year. I am still waiting for Jacob Rees-Mogg to claim this as a benefit of Brexit.

Can humans change sex? No. We are not clownfish.

Do bears poop in wooded areas? Yes. People should always wear stout boots when hiking.

Do you agree with Wickes and other retailers that there should there be no LGB without the T? No. Lesbian, gay and bi people have the right to organise and advocate for their rights without having to get permission from Owen Jones or Jolyon Maugham QC.

Is the world flat? No.

Should biological men be allowed to play in women’s sport? No.

Does the Pope wear a big hat? Yes.

Can men grow a cervix if they go on hormone treatment and all the rest of it? No.

Is the sky blue? Yes.

Should men be held in women’s prisons? No.

How much does a loaf of bread cost? The average loaf now costs £1.15, which is 14% more than five years ago. Again, I’ve not heard anything from Jacob Rees-Mogg about this.

Are some people born in the wrong body? No.

Is water wet? Yes.

Is a trans woman a woman? No, humans cannot change sex. A small minority of trans women – those who have sought and obtained a Gender Recognition Certificate – are legally treated as women for the purposes of the sex discrimination provisions in the Equality Act. But that is not the same as being a woman – no law can change the material reality of sex.

Does a fish need a bicycle? No.

What is the minimum wage? The current adult rate is £9.50 per hour, which is just £332.50 for a 35-hour week. We need to make the minimum wage a living wage.

Do men get pregnant? No.

Can pigs fly? No.

What are your preferred pronouns? I don’t dictate how people refer to me when I am not present, but I do like the sound of ‘Secretary of State’.

Does sex matter? Yes, of course it does.

Will the sun come up tomorrow? Possibly not, if Liz Truss gets back into Downing Street and starts a nuclear war with France.

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Employment Tribunal claims: latest data

Two months ago on this blog, I welcomed the (partial) return of both the quarterly ET statistics and the monthly HMCTS management information on ET receipts and disposals. And last week the latest set of the latter gave us the broad picture to June 2022, i.e. up to the end of Q1 of 2022/23.

As the following chart shows, total ET receipts (single claims + multiple claimant cases) continue to run at just under 60% of the peak level seen in late 2020, and at 75% of the level seen in the last three quarters before the onset of the Covid pandemic in March 2020.

However, even at a level not seen since before the abolition of ET fees in July 2017, receipts continue to exceed the number of disposals, and accordingly the backlog of cases is now creeping back towards the peak seen in early 2021.

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