ET fees: a statistical injustice

The quarterly employment tribunal (ET) statistics issued by the Ministry of Injustice haven’t been terribly newsworthy since the figures became somewhat lacking in variability in mid-2014. So there was very little chance of the latest set – published at 9.30am yesterday, as a weary nation dragged itself to the polls – generating headlines. But it does provide me with an excuse both to update a couple of charts, and to have a long overdue pop at the laughably poor report, published in January, of the Ministry’s internal review of the ET fees regime introduced in July 2013. So, here’s an updated chart:

There is much that can be said about the Ministry’s report of its much-delayed internal review – very little of it complimentary. But in this post I’m going to focus on the report’s repeated use of a range of “between 3,000 and 8,000” for the number of people that it candidly accepts have been “discouraged from bringing [ET] claims” by the hefty fees.

The report is written in such a way that a reader unfamiliar with the subject might easily conclude that “between 3,000 and 8,000” represents the total number of workers discouraged from making an ET claim by the fees since 2013. In fact, it is the Ministry’s figure for just one financial year, namely 2014/15. And, in the real world, between 2014/15 and the publication of the report in January of this year, we had the whole of 2015/16 and three-quarters of 2016/17. And let’s not forget the two-thirds of 2013/14 that came before 2014/15, but after the introduction of fees on 29 July 2013. On that basis, it would have been more honest of the Ministry to give a cumulative total range of ‘between 8,000 and 30,000’. Which is a little scarier than “between 3,000 and 8,000”.

However, the Ministry bases its range of “between 3,000 and 8,000” on a single finding in the Acas research report, Evaluation of Acas Early Conciliation, published in April 2015. And that report, as the Ministry pretty much acknowledges, is itself a pile of pants. The first key finding of that Acas research, which was based on a survey of a sample of workers who had used the (mandatory) Early Conciliation (EC) process, was that 31% of the workers in the sample obtained formal settlement of their potential ET claim (either through Acas, or privately). The research also found that 17% of the sample surveyed “did not obtain a formal settlement but decided not to submit a claim about their dispute, and reported that Acas was a factor in helping them reach this conclusion”.

The second key finding of the Acas research was that 34% of the workers in the sample did not obtain a settlement, and went on to issue an ET claim. Another 19% did not obtain a settlement, but did not issue an ET claim, with 5% saying the fees were a factor in the decision not to issue an ET claim, and 14% saying the fees were not a factor in that decision. The research then broke that 5% down even further: 3% said they “could not afford to pay the fees”, and 2% “gave another reason”. The Ministry then extrapolates that 3% figure to all 83,423 EC users in 2014/15 to generate the 3,000 figure in its range of “between 3,000 and 8,000” workers discouraged from making an ET claim by the fees, and to a much broader measure of “claimants who did not settle [as a result of EC] but did not progress to a tribunal” – which, according to Acas’s real world management information, was 63% of all 83,423 EC users in 2014/15 – to generate the 8,000 figure in its range of “between 3,000 and 8,000”. Still with me?

Again, it would have been more honest of the Ministry to use the 5% figure, not the 3% figure. As the Law Society noted in March, in its response to the Ministry’s review report, “there is no good reason to suppose that, when the [surveyed EC users] said that they could not afford to pay the fees, they did not mean it”. But it is also perfectly possible for a worker to be discouraged from making an ET claim by the fees, despite being able to afford to pay the fees. For example, a worker looking to recover £250 of unpaid wages or holiday pay from a former employer might well conclude that it is not worth paying £390 in fees to do so, when there is no guarantee of recovering either the unpaid wages (or holiday pay) or the fees, even if the claim is successful. And using the 5% figure, rather than the 3% figure, would have raised the cumulative total range to ‘between 16,000 and 53,000’. Which is a lot scarier than “between 3,000 and 8,000”.

Yet, as the Ministry’s report candidly admits, the 31% and and 34% figures – i.e. the two key findings of the Acas survey – are total bollocks (the report puts it slightly differently). Sure, those are the figures produced by the Acas survey of a sample of EC users. But we happen to know the actual figures for the parent sample of all EC users: as set out in paragraph 120 of the Ministry’s report, they are 15% and 22% respectively. In other words, the sample and the survey findings are not representative of all EC users, so cannot be extrapolated to all EC users – or, more accurately, should not be extrapolated to all EC users. Furthermore, the combined effect of these two unrepresentative research findings is, as the Ministry acknowledges, to “underestimate the proportion of [EC users] who did not, or were unable to, conciliate and did not go on to issue” an ET claim. In plain English, both the 3% figure used by the Ministry and the 5% figure that I say it should have used instead are almost certainly significant underestimates of the proportion of EC users who do not settle but do not issue an ET claim, at least in part because of the fees.

For the sake of argument, let’s assume (somewhat conservatively) that the 5% is actually 8%. That would change my suggested range of the cumulative total of workers prevented (by an inability to afford the fees) or simply discouraged from issuing an ET claim by the fees since July 2013, from ‘between 16,000 and 53,000’ to ‘between 22,000 and 70,000’. Which is a hell of a lot scarier than “between 3,000 and 8,000”.

The Ministry is not scared, however. Indeed, it’s not the least bit bovvered. Although the review report goes on to admit (in paragraph 318) that the Ministry’s own analysis “indicates that the introduction of fees may have resulted in indirect discrimination”, this discrimination is “justified” because the fees are “a proportionate means of achieving a legitimate aim”. This is the line parroted by the Prime Minister, Theresa May, when she said recently that the fees ‘strike the right balance’ (presumably, the balance between protecting exploited workers’ access to justice, and helping the Ministry of Injustice balance its books).

Fortunately, thanks to the brilliance and tenacity – over four long years – of Adam Creme, Shantha David and the rest of the UNISON legal team, whether or not the hefty fees ‘strike the right balance’ is still a (legal) moot point. So, for those of you who prefer whole years to quarters, here’s another updated chart:


About wonkypolicywonk

@wonkypolicywonk is a policy minion who has been lucky enough to work at Maternity Action, Working Families, Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK. He currently bangs his head on a desk in Parliament.
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