Three months ago, on this blog, I rashly suggested that Employment Tribunal (ET) claim/case numbers may at last have settled at a new, post-ET fees ‘normal’. And the latest set of quarterly statistics, published by the Ministry of Injustice this morning, does not contradict that assessment. At least, I don’t think it does. Contrary to what you may have read in The Times, far from ‘continuing to surge’, in four of the last five quarters the number of single claims/cases has been somewhere in the narrow range of 8,500 to 9,000. Time will tell.
And, in some jurisdictions, the ‘new normal’ is a lot smaller than the ‘old normal’. Here’s one of the high volume jurisdictions, unfair dismissal, for example.
And here’s breach of contract. Not much evidence of that ‘continuing surge’ here.
Similarly, the latest set of Acas statistics on early conciliation (for Q3 of 2018/19), published by Acas a few weeks ago, tends to support my contention in March that, broadly speaking, the number of ET single claims/cases has reverted to the level we might have expected it to be at, had ET fees and Acas early conciliation not been introduced in 2013 and 2014 respectively.
All very tedious. Hardly worth updating the above charts, really. No one pays much attention to the quarterly ET statistics, these days. Which may or may not explain why, earlier this week, two law firms were back to that old trick of Getting Our Firm’s Name in the Press By Issuing A Press Release With An Eye-catching But Totally Rubbish Story About ET Claim Numbers.
First up was Fox & Partners, with a story in Personnel Today based on their ‘analysis’ of the official ET statistics for the calendar years 2017 and 2018 – which have been publicly available since 14 March – and headlined “Sharp rise in disability discrimination claims at tribunals”. This states:
There were 6,550 disability discrimination claims at employment tribunals [in 2018], a 37% rise on the year before (4,770), according to Ministry of Justice figures.
The data represents a growth rate eight times faster than the increase in total claims over the same period.
According to employment law specialist Fox & Partners the explosion of disability discrimination cases is not only down to the simple fact that tribunal fees were abolished in 2017, but an increased willingness of employees to bring claims relating to mental health issues.
Fox & Partners said many claims of workplace disability discrimination related to the impact of high levels of stress and depression on an individual’s work.
And it is true that, according to the official statistics available since 14 March, in 2018 the number of disability discrimination ET claims increased by 37%. And it is true that the total number of claims – that is, the combined total of single claims and all the claims in multiple claimant cases – increased by only 4% (from 115,334 to 119,896). So, yes, in 2018 the number of disability discrimination claims grew eight times faster than the total number of claims.
However, as any fule kno, the total number of claims is pretty much worthless as a base measure, because it is so volatile (due to the varying influence of large multiple claimant cases). For example, there were 53,696 claims in the second quarter of 2018 (Q1 of 2018/19), but only 16,984 in the fourth quarter (Q3 of 2018/19). And, had Fox & Partners compared the financial years 2017/18 and 2018/19, instead of the calendar years 2017 and 2018, they would have had to report that the total number of claims increased by 12%. But that would not have helped stand up their ‘story’ of an “explosion” in the number of disability discrimination claims.
A much more meaningful base measure is the number of ET cases (that is, the combined total of single claims/cases and multiple claimant cases) – which increased by 73% in the calendar year 2018, compared to 2017. And, again, as any fule kno, that 73% increase was wholly due to the abolition of ET fees in July 2017.
So, the supposedly massive 37% increase in disability discrimination claims in 2018 was in fact only about half the overall increase in ET cases. In other words, it was well below the overall trend. As the following chart shows, the reality is that the number of disability discrimination claims is still some way short of its pre-fees level, and pretty much flatlined throughout 2018 (when, according to Fox & Partners, it was ‘exploding’).
It would have been more instructive for Fox & Partners (or the journalist at Personnel Today) to compare disability discrimination claims with other jurisdictions. Here, for example, is sexual orientation discrimination claims, the number of which rose by a humungous 69% in 2018, compared to 2017 – an “explosion” almost twice the size of that in disability discrimination claims. We await Fox & Partners’ theory for this one.
The number of unfair dismissal claims (see chart, above) increased by 39% in 2018. And here’s another chart showing the number of race discrimination claims, which rose by 34% – that is, by much the same amount as disability discrimination claims. I could go on.
In short, there has not been a “sharp rise” – let alone an “explosion” – in the number of disability discrimination ET claims, other than as part of the across-the-board increase in ET claims/cases due to the abolition of ET fees in July 2017. And – as there has been no such ‘explosion’ – it cannot possibly be explained by any “increased willingness of employees to bring claims relating to mental health issues”. Well done, Fox & Partners.
I barely had time to tweet out my ire in relation to the Personnel Today article, when along came another from People Management, headlined “Experts ‘surprised’ by rise in pregnancy discrimination claims”. This states:
The number of employment tribunal (ET) claims involving allegations of pregnancy discrimination has risen by more than half in a year, raising questions over whether employers are keeping up with a change in culture around maternity rights.
In 2017/18, the number of pregnancy-related ET claims reached 1,357 – an increase of 56% on 2016/17, according to official figures.
This rate of growth was over twice as fast as the overall increase in the number of tribunal cases, which rose almost 20% over the same period, from 143,950 in 2016/17 to 172,730 in 2017/18.
Claire McCartney, senior policy adviser at the CIPD [sic], said that while the removal of tribunal fees may have accounted for some of the increase, there has also been a greater awareness of maternity and paternity rights, and an increased willingness to make claims.
Sound familiar? The very same worthless base measure (albeit for different time periods), and same ‘increased willingness to make claims’. People Management is the official journal of the CIPD, which you’d think would be above such shenanigans. But hang on, there’s a law firm with a theory!
Sophie Vanhegan, partner at [the law firm] GQ Littler, which compiled the figures [sic], said she was surprised to see a spike in pregnancy-related cases.
“I would generally say most sophisticated employers are very, very careful as to what they do when they’re dealing with pregnant employees in the first place,” she said. “There are obviously employers out there who have not been as rigorous in trying to ensure they deal with such employees lawfully in the past.”
Vanhegan attributed the increase in claims largely to the #MeToo movement, which had made women more aware of unacceptable behaviour, especially related to pregnancy. “Things that may have simply just been accepted in the past are now being seen as unacceptable and people are feeling more confident in being able to challenge them,” she said.
Vanhegan added there had been a “time lag” between the movement taking off and business culture changing. “We’re now two years since the #MeToo movement really exploded and I think that takes a little time to trickle down from the Hollywood-type arena in which it launched, into normal workplaces.”
Sure, in 2017/18, the number of pregnancy detriment ET claims increased by 56%, compared to 2016/17. But, thanks to the abolition of ET fees, the overall number of ET cases increased by 60%. So, what does this tell us, apart from the impact of fees? Answer: bog all.
We certainly can’t conclude, as Sophie Vanhegan of GQ Littler does, that the 56% increase in 2017/18 was “largely” due to the #MeToo movement – which did not even start, in the US, until half-way through 2017/18, so we couldn’t really expect to see much if any impact on ET claims in the UK that year in any case. Indeed, the end of 2017/18 – the period chosen by GQ Littler to evidence their ‘story’ – was only five months, not two years, after “the #MeToo movement really exploded [in Hollywood]”. But here’s Caroline Baker of GQ Littler doubling down in The Times, and on Twitter.
Furthermore, GQ Littler had access to three quarters worth of data after 2017/18 – why do they not cite that data? It’s been publicly available for months. Could it be that – as the following chart shows – that data does not support their contention that increased awareness of pregnancy discrimination is leading to an increase in claims? Sure, there was a notable increase in Q3 of 2018/19 (i.e. October to December 2018), which you might have expected GQ Little to cite in support of their ‘theory’. But the figure for Q4, which is among the set of statistics published this morning, suggests that increase was a blip, not part of a trend. [Indeed, see Update, below]
No, these ‘sharp rises’, ‘explosions and ‘increases that surprise experts’ are just the kind of garbage that PR people manufacture (partly by careful selection of a dodgy base line) to try and get journalists – who should know better, but invariably don’t – to pick up their press release. As already noted above, it’s an old trick, but journalists in the supposedly ‘specialist’ human resources press keep falling for it.
And – lo! – GQ Littler (a trading name of law firm GQ Employment Law LLP) has form! Whodathunkit? Yes, back in July 2014, GQ managed to get a whole article in The Times, no less, thanks to their claim that “while other kinds of tribunal claim are falling [due to the fees introduced in July 2013] … sex discrimination claims are now the biggest growth industry among workplace lawsuits because of uncapped compensation.” As I noted at the time: “WTF? Hidden amongst all [the] evident evisceration of ET claims [by ET fees], there is not just a growth industry, but several growth industries?” Dear reader, you will not be surprised when I tell you there were in fact no growth industries.
None of this is to say that there is not “an increased willingness of employees to bring [ET] claims relating to mental health issues” or “a greater awareness of maternity and paternity rights, and an increased willingness to make claims”. But there is absolutely no evidence to support either theory in the official ET statistics, however you cook them. Indeed, pregnancy detriment claims are not the only kind of ET claim to have fallen in Q4 of 2018/19 – so did disability discrimination claims. But no doubt Fox & Partners have a theory for that, to go alongside the one we can expect from GQ Littler and the CIPD.
Update [15 June]: Having spent two hours this morning working out how to change obscure settings on my Mac to enable me to access the monthly statistics as well as the quarterly ones – some time ago, the MoJ changed the operating system used to publish the data, and the new system is not user-friendly – I can now confirm that Q3 was indeed a blip, due to a megablip in October 2018.
There are only two credible explanations for such a megablip: (1) a data input error by HMCTS (and I’ve seen many over the years); or (2) one or more large-ish multiple claimant cases (which, in this jurisdiction, are rare). Either way, for the purposes of this debate, we can safely ignore October 2018.
From the monthly chart, we can also see that the peak in Q1 of 2018/19 was due to a smaller megablip in June 2018. Leave aside/iron out that month, as well as October 2018, and we can see that pregnancy discrimination claims have pretty much flatlined since autumn 2017, i.e. since soon after the abolition of ET fees in July 2017.
In short, there is absolutely no evidence in the official ET stats to support Claire McCartney of CIPD’s assertion of “an increased willingness to make [ET] claims”.
As for Sophie Vanhegan and Caroline Baker of GQ Littler’s assertion that this non-existent “big jump” in pregnancy discrimination ET claims is due to the #MeToo movement, that is what we policy analysts call – and I’m sorry to use a technical term – utter bollox.
Anyway, if you’re reading this, and your name is Sophie Vanhegan or Caroline Baker, or if you are Peter Cheese of CIPD, please do feel free to post a comment below.