Employment Tribunals: The Times they are a-changin’

Yes, as you will know unless you are spending #Lockdown3 on Mars, on Monday the Times newspaper and its Investigations Editor Dominic Kennedy went Back to the Future of 2011, with not one but four articles straight out of the Adrian Beecroft playbook. Yes, the Thunderer has ‘discovered’ that not every Employment Judge learnt their trade at the Institute for Economic Affairs, and – shock horror! – has even found two – TWO!!! – weak claims from the last three or four years that Employment Tribunals rightly dismissed. And all this for the annual salary of an Investigations Editor.

I don’t get paid anything like the salary of an Investigations Editor – and I’m writing these words pro bono – so in this blog I’m not going to respond to all four articles (employment barrister Jason Braier has done a very good job on the one in which the Times sets out its favoured options – not all of them entirely loopy, it has to be said – for reform of the ET system). All you’re getting here is my random thoughts – paragraph by tedious paragraph – on the pathetically one-sided opinion piece masquerading as objective journalism, in which Dominic Kennedy sets out what we must regard as the thesis of whoever it was who fed him their garbage.

Tribunal system chaos: No experience necessary to be a judge in hearings free-for-all

Inexperienced judges who have never heard a case have been hired to clear an avalanche of employment claims from sacked and aggrieved workers.

Comment: Gosh, tell me more, Dominic.

Trade union and town hall lawyers are among 59 new faces judging cases at tribunals, where battles can cost millions of pounds in compensation and legal bills. In the biggest simultaneous recruitment of judges for nearly 400 years, appointees are being hired at annual salaries of £113,000.

Comment: Trade unions! Boo! Town halls! Boo! 400 years? Are we sure it’s not 500 years? Just don’t ask what the annual salary of an Investigations Editor is. As for “millions of pounds in compensation”, in 2019/20 the median ET award for race discrimination was £8,040; for age discrimination it was £11,791; for disability discrimination it was £13,000; and for sex discrimination it was £14,073. There are also not many such awards: in 2019/20, there were just 28 awards for race discrimination, 71 for disability discrimination, 10 for age discrimination, and 46 for sex discrimination. Substantially larger awards are extremely rare: the last time there was a discrimination award of more than £1 million was in 2015/16.

An investigation by The Times shows that the tribunal system is in chaos with a record backlog of 40,000 cases. The average waiting time from a case being received to its conclusion now drags on for 39 weeks.

Comment: It didn’t require an investigation by the Times or any other newspaper to show that the ET system currently has a backlog of 44,479 (single) claims/cases, as of 27 December, because the figure has been freely available on the gov.uk website since 14 January. And the ‘average waiting time’ figure of 39 weeks has been freely available, as part of the most recent set of quarterly ET statistics, since 10 December. And here’s a chart, putting that 39 weeks figure in context.

Employment judges appear to have been making a power grab, telling law chiefs that they should hear all equality cases, not just workplace disputes.

Comment: A power grab! How thrilling. *gets more popcorn*

Even employers who win their cases must expect to lose out financially every time they receive a claim for discrimination because the system is stacked against them. Judges rarely reject equality cases without a full hearing and there is usually no way to recover costs from the losing side.

Comment: This assertion that the ET system is stacked against employers is no more than subjective opinion, unsupported by any actual evidence of the kind you might expect to have been unearthed by an ‘investigation’ by a major newspaper. One could just as easily assert – many people do – that the system is stacked against claimants, all but a handful of whom can only dream of making claims costing their (no doubt former) employer “millions of pounds in legal bills”. And we’ve been waiting since 1785 for the Times to propose a model system for resolving legal disputes that is above and beyond the odd complaint from one side or another.

Tribunals are struggling to cope with a surge in demand since the Supreme Court ruled in 2017 that the fees to bring cases were set at a level which was unlawful because it denied access to justice. The resulting free-for-all has seen claims pouring in at more than double the rate before charges were abolished.

Comment: Well, yes, it is hardly news that, at least until late 2019, by which time most if not all of the “59 new faces” had come on stream, the ET system struggled to cope with the inevitable rise in claim numbers that followed the July 2017 ruling of the Supreme Court (that the justice-denying fees regime introduced in July 2013 was unlawful). And the unlawfulness of that fees regime is entirely the fault of incompetent government ministers, who – cheered on by the Times – repeatedly ignored warnings from low paid idiots like me that the hefty fees they were proposing were, well, unlawful.

Furthermore, that the ET system initially struggled to cope is also the fault of incompetent government ministers, who – having gleefully slashed the system’s judicial, staff and other resources during the era of fees – were laggardly in approving the clearly necessary reversal of those budget cuts.

Finally, as the following chart shows, while the number of new claims is indeed “more than double the rate before [fees] were abolished” (the green bar), it is still well below the rate before fees were introduced in 2013 (the red bar), and was actually falling slightly before the onset of Covid19 led to a new rise in claims.

The rise has been almost entirely fuelled by unrepresented claimants rather than those whose cases have been brought by lawyers or trade unions. While some have merit, others seem extraordinary. Cases employers have recently [sic] had to defend include the dismissal of a van driver who called his young female colleague an “ugly pikey”. He complained that his sacking was sexual discrimination. In another, a Chinese man demanded £781,000 for failing to get a security job, claiming that he was racially discriminated against for liking table tennis.

Comment: This paragraph contains the only two case examples in the entire article. Yet neither case justifies the main thrust of the article and its contentious headline. For, in the (not-so-recent) case of the ‘van driver’, the ET claim was made in January 2017 and heard by an ET in February 2018, long before the recruitment of the “59 new faces” that causes the Times such concern. Contrary to the impression given by the paragraph’s opening sentence, this claimant was legally represented at the hearing, and it is worth noting that he would have paid fees of £1,200 to pursue his claim. Similarly, in the case of the “Chinese man” (actually a British man), the ET claim was made in July 2018, and was heard in June 2019 by an EJ who has sat as an EJ since at least 2013. Both claims were dismissed, which could be seen as the ET system working as intended.

At this point the article includes a chart showing how the backlog of outstanding (single) claims fell both before and during the era of fees – when the number of new claims was a fraction of the pre-fees level – and has since risen to exceed the 2010 peak that followed the 2008 financial crisis and consequent economic recession. And in that chart we can actually see the impact on the backlog of the extra “59 new faces” decried by the Times (annotation added by me).

Indeed, based on the HMCTS weekly data for early March 2020, the backlog was then falling at a rate of about 7,500 per year – enough to return the backlog to its late 2017 level within two years. Aided by the modest decline in new case numbers already identified, above, this turnaround was largely thanks to those “59 new faces” that the Investigations Editor bores on about.

But then Covid 19 hit.

To cope with the extra workload, rather than streamlining its procedures or throwing out weaker cases, the tribunals have embarked on the mass hiring of judges, increasing their annual salary bill by nearly £6 million. To fill so many new posts, the bar was lowered on the standards demanded of recruits, opening the contest for the first time to candidates without judicial experience.

Comment: The ET system’s budget for 2020/21 was provisionally £71m. So, speaking as a taxpayer, “nearly £6m” (59 x £113K) to deal with “claims pouring in at more than double the rate before [fees] were abolished” seems like quite good value to me.

As for the ‘bar being lowered’, the Times does not present a single shred of evidence of poor decision-making by the “59 new faces”. As noted above, only two case examples are cited in the entire article, and both were heard by EJs of long standing. For all we know, the “59 new faces” might be making better decisions than their supposedly more experienced peers. Maybe the Times should, you know, do an investigation?

Previously, full-time judges were chosen from the ranks of part-time judges who would have to hear cases for about 30 days a year. “In the latest round that wasn’t a requirement,” a judicial source told the Times. “Some people have been appointed who have never sat before. It was certainly a departure. It is quite a stretch for somebody to be thrown in immediately as a full-time judge.”

Comment: Heaven forbid that the Ministry of Justice should do something slightly different to what it’s done for the last 400 years, in order to deal – a little more rapidly than its usual speed of a dead snail – with a crisis of its own making. And how do we know that this ‘judicial source’ isn’t just some bitter old piece of dead wood with a chip on their shoulder?

Nearly half the new recruits have no judicial experience on brief biographies issued by the Ministry of Justice. A spokeswoman for the judiciary said: “Where appointments are made without pre-judicial experience candidates will have met the selection criteria with material equal to that of their judicial colleagues. Regardless of previous background all judges receive extensive, high-quality training incorporating local orientation and induction training as well as a two-day cross- jurisdictional course for all new judges. In addition, all judges complete an annual mandatory two-day course.”

Comment: Once again for those at the back, there is not a shred of evidence – in this ludicrous Times article or elsewhere – of poor decision-making by the “59 new faces”.

Employment tribunals were created by Tony Blair to replace industrial tribunals. They now hear more than 90 types of case, including complaints about unauthorised deductions from wages, breaches of working hours limits, unfair dismissal and discrimination.

Comment: That’s right, when you’re really struggling to make your case, just throw in the name of someone universally reviled. Works every time – if your readership left their brains at the golf club. This is just silly.

Also, as any fule kno, Tony Blair did not ‘create’ Employment Tribunals. He just renamed what were previously known as Industrial Tribunals. That’s the kind of ‘modern and cost-free’ thing that New Labour did.

Discrimination cases take longer to hear than other cases and even the Council of Employment Judges, representing most judges, told the Law Commission that “sometimes it is fair criticism that too much time is given” to equalities issues.

Comment: Oh no, not the Council of Employment Judges! (As you can probably tell, my will to live is slipping away now.)

Guided by rulings from the upper courts, employment judges are reluctant to weed out weaker cases without a hearing, although this would reduce the workload. Employment Judge Russell told East London Employment Tribunal in 2019: “Those occasions on which a strike-out should succeed before the full facts have been established are rare, particularly so where the claim is one of discrimination.”

Comment: Apparently, the Times wants EJs to throw cases out before they’ve ascertained whether they are weak, or not. No, me neither.

Judges may also allow irrelevant evidence to be heard, dragging out cases. Employment Judge Goodman concluded a six-day discrimination case at London Central Employment Tribunal last year by saying that it had involved 2,500 pages in evidence bundles and much else that did “not directly concern the 12 allegations of detriment”.

Comment: Two cases, two comments by two judges. How long did this Times investigation take? But yeah, let’s scrap Employment Tribunals.

David Cameron doubled the qualification period for unfair dismissal from one to two years in employment. Lawyers warned that this might incentivise sacked workers to claim instead for discrimination or whistleblowing because employees retained the right to bring such claims from their first day at work. The latter cases take longer to hear than unfair dismissals.

Comment: Were those trade union lawyers? Or town hall lawyers? Have any of them since become one of the “59 new faces”? One minute, lawyers are bad, and the next minute they’re credible and quotable. It’s so hard to keep up.

Several claimants who brought discrimination cases and lost have told the Times that they genuinely believed they had been unfairly dismissed and would have claimed for that if the qualification time had been shorter.

Comment: Several people have told me that they genuinely believe that the Times is a paper of record.

Many employers settle discrimination cases out of court rather than pay lawyers and risk reputational damage. Latest figures show that while 22 per cent of all tribunal cases result in early settlements negotiated by the conciliation service Acas, that rises to 46 per cent of sexual orientation claims, 41 per cent for disability and 36 per cent for sex discrimination.

Comment: Tribunal statistics may not mean what you think they mean. And, if you’re the Investigations Editor at the Times, they definitely don’t mean what you think they mean.

Employers are vulnerable to law suits launched to taint their image. Employment Judge Crosfill told East London Employment Tribunal in 2019: “Claims can be brought purely for the purpose of embarrassing another party.”

Comment: Show me a legal system for resolving disputes anywhere in the world that isn’t vulnerable to such action.

Employment judges have been seeking to expand their empire by requesting powers to hear all cases brought under equality law including disputes about goods, services, education and housing which are currently heard by county courts. The Council of Employment Judges formally pointed out to the Law Commission, which considers reforms, that they regarded themselves as “very experienced with equalities issues. Disability, for example. We are experienced in making disability work at the workplace, learning what disabled people can do, with reasonable adjustments. Think Paralympics. That experience is portable to other areas of equalities litigation.”

Comment: First Tony Blair, now the Paralympics.

The move raises the prospect that, as with employment issues, claimants could launch claims without having to pay the other side’s costs if they lose, resulting in a surge in complaints of discrimination against shops, landlords, hospitals, schools and universities.

Comment: On the other hand, this article raises no prospect of Dominic Kennedy winning an award for investigative journalism. Who knows, we might even see a repeat of what happened the last time I challenged an article in the Times about Employment Tribunals.

About wonkypolicywonk

Wonkypolicywonk is a policy minion, assigned wonky at birth, who has been lucky enough to work for two of the very best MPs in the House of Commons, and before that at Maternity Action, Working Families, Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK. Oh, and at McDonald's.
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