Zero-hours contracts: To ban, or not to ban?

Posted on August 19, 2024 by wonkypolicywonk

While we await the return of MPs to Westminster to begin work on the new Labour Government’s ambitious legislative programme, including what is set to be a truly humungous Employment Rights Bill, the (very) clever policy wonks at the Resolution Foundation have been trying – and failing – to work out how one of the promised key measures in that Bill might actually work.

Last week, the Foundation’s principal economist, Nye Cominetti, posted on X/Twitter:

Labour plan to give workers on zero-hours contracts a right to a contract with hours reflecting the hours they regularly work (assessed across 12 weeks). Sounds simple, but I’m struggling to guess how this will work in practice. Big questions:

Are ‘regular’ hours the average observed, or the minimum? Will weeks where no work happened be included, or does that disqualify? Will workers have a right to these hours in all weeks, or on average only? Will it still be possible for a worker to have a zero hours week? This matters.

And I would suggest that, if you are a new Labour minister, and even the Resolution Foundation cannot see how your shiny new policy would actually work in practice, then you have a problem.

Extract from Labour’s Plan to Make Work Pay, published 24 May 2024

Part of the problem is that the near-totemic pledge to ‘ban zero-hours contracts’ has mutated somewhat since Labour’s September 2021 New Deal for Working People, in which the ‘right to a contract with hours reflecting the hours they regularly work (assessed across 12 weeks)’ was presented as quite separate to a ban on zero-hours contracts:

Labour will ban zero hours contracts and contracts without a minimum number of guaranteed hours. We will also [sic] ensure anyone working regular hours for twelve weeks or more will gain a right to a regular contract to reflect those hours normally worked.

As I’ve noted elsewhere, by February this year shadow ministers had qualified the proposed ban, limiting it to exploitative zero-hours contracts, without explaining how they plan to distinguish between exploitative and non-exploitative contracts. And, as noted on this blog, in March it emerged from a speech by shadow chancellor Rachel Reeves that the separate right to a regular contract where regular hours have been worked for 12 weeks had now transmogrified into the means by which shadow ministers planned to accomplish the ban. During the General Election campaign, this was explained in a video posted on X/Twitter by Justin Madders, now a business minister:

There’s over a million people on zero-hours contracts. Many of them don’t want to be on them. They don’t know how many hours they will get to work from one week to the next. How can they plan their lives? How can they be sure they can pay the bills or even put food on the table, if they don’t know how many hours they’re going to work?

So we’re going to change the law, so that after 12 weeks in employment, you will be legally entitled to a minimum number of hours each week, based on what you’ve actually done in the previous 12 weeks. That will get rid of the insecurity of zero-hours contracts, give people certainty and a base to work on, and actually make sure that we have a fair workplace for all under Labour’s New Deal for Working People.

However, as I noted in April, this would not amount to a ban on (exploitative) zero-hours contracts, and would most likely benefit only a very small proportion of the some 1.1 million workers currently on a zero-hours contract:

All that is actually on the table is a new right to seek a bit more ‘security’, but only for those workers who already have the rather significant security, in this context, of working regular (and therefore predictable) hours over a sustained period. And, realistically, a great many of those workers will be content enough with that working arrangement to not want to exercise the new right.

But there is no such protection for those who need it most – the far greater number of workers who are being exploited by being given only irregular and unpredictable hours by a rogue employer.

To fully understand why this switcheroo had employment policy wonks like me staring at our screens in disbelief, it’s worth looking back at the origin of the proposed ‘right to a contract that reflects the hours regularly worked’. This was one of several recommendations in an October 2018 report by the Low Pay Commission on ‘one-sided flexibility’, which the Government had requested from the Commission in February 2018 in response to the Taylor Review of Modern Working Practices.

In 2017, while calling for “significant changes to our labour market”, the Taylor Review had concluded that “to ban zero-hours contracts in their totality would negatively impact many more people than it helped.” Indeed, the Taylor Review cited Labour Force Survey evidence that two-thirds of those on zero-hours contracts do not want to work more hours. Which would suggest they are not totally unhappy. Instead, the Taylor Review recommended that “the Government should ask the Low Pay Commission to consider the design and impacts of the introduction of a higher National Minimum Wage rate for hours that are not guaranteed as part of the contract”.

However, in its October 2018 report, the Low Pay Commission rejected the Taylor Review’s proposal of a higher minimum wage rate for any hours that are not guaranteed, and recommended “an alternative package of measures”, including: a right to switch to a contract which reflects your normal hours (over a defined reference period); a right to reasonable notice of work schedule; and compensation for shift cancellation or curtailment without reasonable notice.

Not only were these proposed measures not specifically aimed at workers on zero-hours contracts, but the Low Pay Commission joined the Taylor Review in explicitly rejecting the idea of a ‘ban’ on such contracts, confining the issue to an Appendix to the report.

Furthermore, as Nye Cominetti and his fellow wonks at the Resolution Foundation have been finding, the Low Pay Commission left unanswered a number of questions about how the proposed ‘right to a contract that reflects the hours regularly worked’ might work in practice, including how long the reference and qualifying periods should be (Labour appear to have got their 12-week reference period from the trade union USDAW), and how it might be enforced. And with good reason: the most vulnerable workers are those least likely to risk their job by taking their employer to a tribunal.

In short, Labour ministers such as Angela Rayner and Justin Madders appear to have realised, somewhat belatedly, that the ban on exploitative zero-hours that they have repeatedly promised to voters is neither practicable nor desirable. And, to cover their retreat, they have grasped at the similarly promised but quite separate ‘right to a contract that reflects the hours regularly worked’, to use as a political fig leaf.

Which is fine. That’s the kind of thing politicians do. But if Rayner and Madders genuinely think this will “get rid of the insecurity of zero-hours contracts”, they are deluded.

[Update, 30 August: It may or may not be significant that a BBC news report today, about the flexible working provisions of the coming Employment Rights Bill, refers to Labour having pledged to “restrict the use of zero-hours contracts”. If this is based on what the Department for Business & Trade briefed to the journalist, then this could be the first sign of a retreat from use of the B-word.]

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Zero-hours contracts: Labour’s zero-sum game

Posted on April 1, 2024 by wonkypolicywonk

In February, I questioned whether Labour shadow ministers have any idea how to implement their near totemic pledge – set out in their New Deal for Working People – to “ban zero-hours contracts and contracts without a minimum number of guaranteed hours”. And in doing so, I noted that, in a recent Financial Times column pushing back against media reports that Keir Starmer is under pressure to water down the laudably ambitious New Deal document ahead of the approaching General Election, deputy leader Angela Rayner had possibly qualified the pledge by stating that Labour would ban only “exploitative” zero-hours contracts. But how this would be done remained a mystery.

Then, early last week, the eagle-eyed Darren Newman reported that, when delivering her Mais Lecture at the Bayes Business School on 19 March, shadow chancellor Rachel Reeves had not only mirrored Rayner’s apparent qualification of the pledge, but had gone on to explain how this qualified ‘ban’ would be implemented:

We will ban exploitative zero hours contracts, by giving all workers the right to a contract that reflects the number of hours they regularly work, based on a twelve-week reference period.

As Darren noted, “the suggestion here is that the right to a regular contract where regular hours have been worked for 12 weeks [pledged in the New Deal document] is not a separate right in addition to the ban on zero-hours contracts – it is the method by which the ban on ‘exploitative’ zero-hours contracts is to be accomplished”. And, in a subsequent interview on Sky News, Labour Party chair Anneliese Dodds appeared to confirm what would amount to a significant policy shift.

Darren concluded that “Labour needs to think about how to convert slogans into legislation that actually works, [and] perhaps what Rachel Reeves said is part of that process. On the other hand, it might have been a typo.”

Well, we didn’t have to wait long for confirmation that it was not a typo. On Thursday morning, during an extended interview by the BBC R4 Today programme’s Nick Robinson, ahead of Labour’s launch of their campaign for the local elections on 2 May later that day, Angela Rayner was (eventually) very clear:

Nick Robinson (at 2:18:21): You used to say you’d ban all zero-hours contracts. You don’t any more, do you?

Angela Rayner: Well, we will ban zero-hours contracts …

Nick R: But not all of them.

Angela R: Well, there’s different ways you can do it, you can aggregate over 12 weeks, we’re in consultation and we’re working with the sectors including with the workers that says we do not want exploitative contracts where people are working regular hours but are [on] a zero-hours contract.

Nick R: So, people who want to work [on a zero-hours contract] will still be able to work [on a zero-hours contract]. A change of approach?

Angela R: If people are working a flexible contract, their contract will be be able to specify that, but what we won’t have …

Nick R: So, you won’t ban zero-hours contracts?

Angela R: Let me be clear, Nick. What we won’t have is people working regular hours who are given a zero-hours contract and no security. We’re calling time on that and I think most people recognise that.

Nick R: Understood.

Angela R: You can’t get a mortgage, you can’t get credit, if you’ve got a contract that doesn’t give you any hours and it doesn’t work for people.

So, it is now very clear: the incoming Labour government’s Bill to implement the New Deal for Working People will not include a ban on “zero-hours contracts and contracts without a minimum number of guaranteed hours”. It may include the New Deal‘s new right to a regular contract where regular hours have been worked for 12 weeks (one of several recommendations by the Low Pay Commission in a December 2018 report on one-sided flexibility), but that would not amount to a ban on exploitative zero-hours contracts, and would most likely benefit only a very small proportion of the 1.1 million workers currently on a zero-hours contract.

In short, the headline policy is a sham, and always was a sham. All that is actually on the table is a new right to seek a bit more ‘security’, but only for those workers who already have the rather significant security, in this context, of working regular (and therefore predictable) hours over a sustained period. And, realistically, a great many of those workers will be content enough with that working arrangement to not want to exercise the new right. But there is no such protection for those who need it most – the far greater number of workers who are being exploited by being given only irregular and unpredictable hours by a rogue employer.

Furthermore, as Darren Newman noted in his blog of 19 March, there is a very real risk that telling employers that, if they give a worker regular hours for 12 weeks, then they will have to write that into the worker’s contract will create a perverse incentive for such employers to offer only irregular and unpredictable hours. Doh!

Whatever, politics aside, this is no big deal. Not for the first time, Labour in opposition have made policy by slogan, without stopping to think how they might turn the slogan into law once in government. So, there never was going to be a ‘ban on zero-hours contracts’. But, as I have said many, many times over the past decade, ever since people in Labour first started talking about banning zero-hours contracts, the misuse of zero-hours contracts by rogue employers is best seen as a symptom, not the disease – which is the ability of rogue employers to exploit vulnerable workers with near impunity, including by the misuse and abuse of flexible working arrangements. Indeed, as the Low Pay Commission noted in its December 2018 report, “the problems associated with one-sided flexibility go wider than the phenomenon of zero-hours contracts”.

In terms of treating the underlying disease, there are far more important pledges in Labour’s New Deal for Working People than the (never practicable) ‘banning’ of zero-hours contracts, not least the rarely mentioned pledge – which was also in Labour’s 2019 general election manifesto – to “establish and properly fund a single enforcement body to enforce workers’ rights” (see page 11).

As previously noted on this blog, at the 2019 general election the Conservatives (and even the Liberal Democrats) similarly pledged to create such a new enforcement body, but Boris Johnson never found time for his repeatedly promised Employment Bill, and Liz Truss and Rishi Sunak … well, you know that story. We’ll just have to hope that the coming Labour government sticks to its word on that pledge, at least.

Posted in Workers' rights | Tagged , , , | 2 Comments

Toxic Truss and the Chamber of Horrors

Posted on March 19, 2024 by wonkypolicywonk

Since Friday, there’s been some argy-bargy between MPs over which party – the Conservatives or Labour – was responsible for “talking out” an attempt by the shortest-serving Prime Minister in history, Liz Truss, to progress her Private Members’ Bill (PMB) to clarify the meaning of “sex” in the Equality Act 2010, stop the social transitioning of children in schools, and ban healthcare providers from prescribing puberty blockers and cross-sex hormones to anyone under 18 years old.

Truss’s Health & Equality Acts (Amendment) Bill was strongly supported by sex-realist campaign groups such as Sex Matters, but was third on the list of PMBs to be debated on Friday, after the Animal Welfare (Import of Dogs, Cats & Ferrets) Bill introduced by Selaine Saxby, and the Public Procurement (British Goods & Services) Bill introduced by Sarah Champion. And, on what are known as PMB Fridays in the House of Commons, a PMB has to successfully complete its Second Reading by 2:30pm to progress to the next stage of parliamentary scrutiny (Committee stage).

However, after 12 Conservative and nine Labour MPs unnecessarily spent almost four hours debating Saxby’s Bill, despite the Bill already having the enthusiastic support of both the Government and the Labour Opposition, there wasn’t even time to complete the Second Reading of Champion’s Bill by 2:30pm. So Truss’s Bill will now fall to the bottom of the (long) priority list of PMBs to be debated on future PMB Fridays, with zero chance of becoming law.

In truth, Truss’s Bill never had much, if any, chance of becoming law, as last November Truss had come only 18th in the annual ballot that gives MPs the chance to be one of the first 20 MPs to introduce a PMB (out of the more than 400 MPs who entered the ballot), whereas Saxby had come 6th, and Champion had come 12th. Only the top seven MPs in the ballot are guaranteed a full Second Reading debate on their PMB, and without Government support only the top 10-15 PMBs have any realistic chance of becoming law. (Last year, 16 PMBs became law, but many of these were a Government hand-out Bill masquerading as a PMB.)

But that didn’t stop Tory MP Sally-Ann Hart accusing Labour of “talking out” Truss’s Bill, saying Labour has “no interest in safeguarding children against extreme trans ideology”. And it didn’t stop Labour’s Sarah Champion posting a short film on social media in which she accused government ministers of getting Tory MPs to “talk and talk and talk and talk and talk” to prevent her own Bill from progressing. To which Tory MP Jackie Doyle-Price responded: “Come off it, Sarah, you know full well it was your benches going long to prevent any discussion of Liz Truss’s Bill”. And then Sarah Champion hit back with: “Jackie, check Hansard x”.

So, who is right? Well, I checked the Hansard record of Friday’s debates and, as the following chart shows, in the four-hour debate on Selaine Saxby’s Animal Welfare Bill, 12 Tory MPs spoke for a total of 99 minutes (an average of 8m 15s), and nine Labour MPs spoke for a total of 136 minutes (an average of 11m 20s). And, of the 31 (short) interventions, 24 were by a Labour MP, and seven by a Tory MP.

The longest speech (34 minutes) was by Labour shadow minister Steve Reed, while three other Labour MPs – Ashley Dalton, Seema Malhotra and Maria Eagle – collectively spoke for almost an hour. And, as well as making a four-minute speech, Sarah Champion made four interventions, including one in which she used up precious time to tell MPs that her brother once had a ferret called Oscar:

Then, in the (curtailed) debate on Sarah Champion’s Bill that followed, five Labour MPs spoke for a total of 57 minutes (an average of 11m 24s), and one Tory MP spoke for two minutes. Of the seven interventions, four were by a Labour MP, and three by a Tory MP. And, at the conclusion of the debate, one Tory MP made a point of order about Labour MPs ‘talking out’ Truss’s Bill.

So, overall, 13 Tory MPs talked and talked for a total of 101 minutes (that is, 34% of Friday’s debating), while 14 Labour MPs talked and talked and talked and talked for a total of 193 minutes (66% of Friday’s debating). Because the fact of the matter is that, for different reasons, neither the Government nor the Labour Opposition wanted MPs to debate Toxic Truss’s PMB. Government ministers such as Kemi Badenoch want to keep some or all of the measures in Truss’s PMB back as manifesto pledges in the approaching General Election (or for their own Tory leadership campaigns), while Labour shadow ministers are all over the place on the issue and would just like to keep their heads where they’ve had them for the last few years: buried deep in the sand.

Welcome to the Chamber of Horrors.

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ET fees: my response to the MoJ consultation

Posted on February 28, 2024 by wonkypolicywonk

Earlier this month, on this blog, I posted my initial thoughts about the surprisingly-timed Ministry of Justice consultation on Employment Tribunal (ET) fees, launched on 29 January, as well as some further thoughts and my proposal for an alternative fees regime that would better protect access to justice while raising more money for the Ministry.

In short, given the dire state of public finances and continuing uncertainty about the precise location of the Money Tree, I do not think it is unreasonable to expect users of the ET system to make a modest contribution towards the annual £80m cost of that system. However, if there is to be a fees regime, then all users of the ET system – including respondent employers and each of the claimants in a multiple claimant case – should pay a fee, not just single claimants. And that would allow for a lower level of fee, and/or more case-type exemptions, and/or greater total fee income for HMCTS.

Earlier this week, the TUC published a joint statement with 47 other organisations “against Employment Tribunal fees”, the clear implication being that the 48 organisations oppose not just the modest fees regime proposed by the Ministry of Justice last month, but any ET fees regime. On principle, or something.

My response on X (formerly Twitter) to the joint statement soon had one of the many sanctimonious twerps at the TUC trawling through my X/Twitter feed all the way back to early 2014, when we still had the choice between “stability and strong government” with David Cameron/Theresa May/Boris Johnson/Liz Truss/Rishi Sunak or “chaos with Ed Miliband”, I was busy documenting the impact of the hefty ET fees regime introduced in July 2013, and the sanctimonious twerp was a journalist covering the City of London.

Whatever, the TUC’s joint statement did at least remind me that I hadn’t yet submitted my response to the Ministry of Justice consultation. So what follows is what I submitted to the Ministry yesterday.

1. Do you agree with the modest level of the proposed claimant issue fee of £55, including where there may be multiple claimants, to ensure a simple fee structure?

No. I accept, as the Supreme Court noted in 2017 in the UNISON judgment, that “Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice”. And I accept that a £55 claimant fee would not create an intolerable barrier to justice – to my mind, if a would-be claimant does not qualify for remission, and is deterred by a £55 fee, then perhaps the claim is not worth bringing (at an average cost to taxpayers of £2,400).

However, with the introduction of mandatory Acas early conciliation from 2014, respondent employers are as much ‘users’ of the ET system as claimants, because the State has already provided them with a taxpayer-funded opportunity to resolve the issue, for free. So, if workers are to pay a fee to pursue an ET claim, employers should also pay a fee to defend an ET claim.

Furthermore, I see no good reason why the tens, hundreds or even thousands of claimants in a multiple claimant case (MCC) should pay only one £55 fee between them. All such MCC claimants are users of the ET system, and if their case is successful they will all benefit accordingly. In 2022/23, the 2,579 MCC cases had an average of 21.3 claimants, so the average MCC claimant would have paid just £2.58 towards a £55 fee.

I am aware that, in 2011-13, the TUC and others cited Chapter 6 of the HM Treasury Handbook ‘Managing Public Money’ to argue that it would be wrong to charge each MCC claimant the same fee as single claimants, because that would lead to HMCTS ‘making a profit’ on large MCC cases. However, with a fee set at just £55, there would need to be 44 or more claimants for an MCC case to generate total fee income in excess of the £2,400 average cost of processing an ET case, and as already noted in 2022/23 the average number of claimants in an MCC case was 21. So, this minor issue could be easily addressed by, for example, a cap on the total amount of fees paid in MCC cases. However, to my mind there is a strong, principled case for making MCC cases an exception to the ‘general principles’ set out in the HM Treasury Handbook.

Assuming (somewhat crudely, but I don’t think it matters much) that there is one respondent employer for each single claimant and each multiple claimant case (MCC), in 2022/23 there were 30,417 single claimants, 32,996 respondent employers, 54,884 MCC claimants, and 1,400 EAT appellants. And charging all those 119,697 users of the ET system, rather than just the 30,417 single claimants and 1,400 EAT appellants, a modest fee would make it much easier to ensure that the fees regime does not create a barrier to justice (by lowering the level of the fee, and perhaps by widening the scope for fee exemptions to cover simple wage claims), while also delivering a more substantial contribution towards the £80m cost of the ET system.

For example, if the fee for single claimants, MCC claimants and respondent employers was set at an even more modest £35, and the fee for EAT appellants at the proposed £55, then – after allowing for remission on the same basis as set out in the consultation’s Impact Assessment – the fees regime would deliver total net annual fee income of £4m, more than twice that of the proposed, claimants-only regime, and equivalent to 5% of the £80m cost of the ET system.

2. Do you agree with the modest level of the proposed EAT appeal fee?

Yes. For the reasons given in my response to Q1, above, the proposed EAT appeal fee does not seem unreasonable to me.

3. Do you believe this proposal meets the three principles set out in the consultation document?

Yes, I accept that the proposed fees regime meets the principles of Affordability, Proportionality and Simplicity. However, for the reasons set out in my reponse to Q1, above, the proposed fees regime is not fair, as it does not apply to all ‘users of the ET system’. To my mind, any ET fees regime should also meet the principle of Equity. And the principle of Equity demands that, if there is to be a fees regime, then all users should pay a fee (subject to remission and case-type exemptions).

4. Do you consider that a higher level of fees could be charged in the ET and/or the EAT?

No. To meet the principles of Affordability and Proportionality, the level of fees should be as low as is consistent with the objective of relieving “some of the cost to the general taxpayer”. And, as set out in my response to Q1, above, charging a fee to all users of the ET system, rather than only some of them, would allow for the fee level to be lower than the proposed £55.

5. Are there any other types of proceedings where similar considerations apply, and where there may be a case for fee exemptions?

Yes, I believe there is a strong case for exempting straightforward, low-value claims, such as wages claims. Indeed, there is case for such claims being resolved not by the ET system, but by the proposed Single Enforcement Body.

6. Are you able to share your feedback on the different factors that affect the decision to make an ET claim, and if so, to what extent? For instance, these could be a tribunal fee, other associated costs, the probability of success, the likelihood of recovering a financial award, any other non-financial motivations such as any prior experience of court or tribunal processes etc.

I do not feel able to add to what is set out in the consultation paper.

7. Do you agree that we have correctly identified the range and extent of the equalities impacts for the proposed fee introductions set out in this consultation?

Yes.

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Cochlear implants: an update from Wonky Junior

Posted on February 25, 2024 by wonkypolicywonk

Today is International Cochlear Implant Day. If you’ve not heard of cochlear implants, they are an amazing technology that enables profoundly deaf children and adults to ‘hear’ sound, and so learn to communicate primarily by speech (often supplemented by lip-reading and use of sign language). The technology and medical science involved is really quite extraordinary.

My son Sam, now 24, has been a cochlear implant user since he was two, having been left profoundly deaf by severe pneumococcal meningitis in infancy. And, six years ago, I wrote on this blog about the difference that Sam thought having cochlear implants had made to his life so far. This included being able to get matey with Turkish pirates, swap hospital stories with an Olympic champion, become something of a dance floor legend (much like his Dad, tbh), and hear a stadium full of Harlequins fans moaning about how useless Harlequins are as we watch them lose, again.

That year, 2018, Sam was in his final year at school (the residential deaf school Mary Hare, near Newbury). So the six years since have seen some big changes in his life. And many of these changes were facilitated – if not made possible – by Sam’s cochlear implants enabling him to use speech as his primary means of communication. Because, while Sam is also a fluent user of Sign Supported English, that’s not much help if the person he’s trying to talk to does not sign. And only 0.02 of the UK population do sign.

Perhaps the biggest change is that Sam has abandoned his previous allegiance to Harlequins – our local Premiership rugby team – in favour of Saracens, about three million miles away in north London. But this is not because he is fickle. In 2019, Sam joined the disability rugby programme run by Saracens Foundation, and was soon developing essential life skills, improving his communication skills, and emerging as a leader and role model to other disabled young adults.

Sam’s personality, commitment and hard work – together with his shameless switch of allegiance to Saracens – soon secured him a staff role on the Foundation’s Special Educational Needs holiday camps, helping children with learning difficulties and/or physical disabilities reap the mental and physical benefits of sporting activity.

Sam working at a Saracens Foundation SEN holiday camp in St Albans

With the active support of Saracens stars such as Jackson Wray, Sean Maitland and Ella Wyrwas, Sam continued to blossom, and in early 2023 he became an assistant coach of the newly-launched Saracens Foundation junior rugby programme, working with disabled children aged 8-13.

By then, Sam’s volunteering with Ben Lampert of Brentford FC Community Sports Trust had led to his appointment as a casual assistant sports coach, helping Ben deliver multi-sports sessions in west London primary schools, as well as sports days, holiday camps and outings. And all this while playing mixed ability rugby with Surrey Chargers at Chobham RFC on Saturdays.

Sam with Surrey Chargers teammate Jack
Sam with Surrey Chargers teammate Will

Along the way, Sam has met and downed a beer or two with rugby legends such as Owen Farrell, Jamie George, Maro Itoje and Billy Vunipola, been interviewed on stage by David ‘Flats’ Flatman at the Saracens Foundation annual fundraising dinner, completed Level 1 and 2 coaching qualifications, scored a try for Surrey Chargers and enjoyed the craic at the International Mixed Ability Rugby Tournament in Cork, starred alongside Marios and Memnos Costi and Steph Hanratty in an episode of the TV series Deaf Away Days, run several 10Ks to raise money for the Cochlear Implanted Children’s Support Group, played on the Twickenham pitch with Project Rugby during half-time of the Gallagher Premiership final between Leicester and Saracens, and attended Jackson Wray’s testimonial dinner at the Oxo Tower restaurant. And he’s loved every moment.

With Ella Wyrwas after Ella and Saracens Women won the Premier 15s final v Exeter, 2022
With Jackson Wray, at Sale’s AJ Bell Stadium
With Owen Farrell at Jackson Wray’s testimonial dinner, Oxo Tower, April 2023
“Deaf Away Days” at Saracens v Northampton

It goes without saying that all of this has made me and Sam’s mum, Joanna, very proud. And perhaps my favourite moment came last summer, when Sam was nominated and then shortlisted for the Rugby Ambassador award at the Premiership Rugby Community Awards 2023, in my old stamping ground, the House of Commons. Sam didn’t win, but then one of the values that Sam has acquired through his participation in the Saracens Foundation disability rugby programme – and which he now works to instil in others – is that it’s not really the winning that counts.

No doubt Sam would be having a great life without access to sound, as a user of sign language only. But Joanna and I are deeply grateful to the numerous surgeons, doctors, audiologists, speech & language therapists, and teachers of the deaf for giving Sam the opportunity to enjoy the world in ways that might otherwise not have been available to him. And we’re immensely grateful to Sean Maitland, Ella Wyrwas, Jackson Wray, Charlie White, Ryan Eaton, Paul Tanner and all the staff and volunteers at Saracens Foundation for helping Sam make the very most of that opportunity.

No one appreciates all this amazing support more than Sam. So on 7 April, Sam will run the London Landmarks Half Marathon to raise money for Saracens Foundation. And I’d be chuffed if you could sponsor Sam by visiting his fundraising page. (Suffice to say, I will not be running the Half Marathon with Sam – I’m more a Full Mars Bar man, these days.)

With Sean Maitland (Saracens, Scotland & British Lions) in the StoneX stadium
Sam at the Premiership Rugby Community Awards, House of Commons, July 2023
With Topsy Ojo at the Premiership Rugby Community Awards 2023
With David ‘Flats’ Flatman at the StoneX
Posted in Disability | Tagged , | 1 Comment

Employment Tribunal fees: How to fee, *that* is the question

Posted on February 5, 2024 by wonkypolicywonk

Last week on this blog, I set out my initial response to the Ministry of Justice proposal to introduce modest fees for Employment Tribunal (ET) claimants and Employment Appeal Tribunal (EAT) appellants. In short, given the dire state of public finances, and continuing uncertainty about the precise location of the money tree, I do not think it is unreasonable to expect users of the ET system to make a modest contribution to the (not insignificant) cost of that system. The challenge is to devise a fees regime that is (a) fair and (b) does not create a barrier to justice.

In other words, the Hamletian question is not ‘to fee, or not to fee’, but how to fee.

I did not say – perhaps because I thought it did not need saying – that the design of the fees regime has to meet (a) and (b), while also delivering, in terms of fee income, a significant contribution to the overall cost of the ET system. Otherwise, one might wonder whether introducing a fees regime is worth the candle – a point well made by one employment lawyer last week. Martin Pratt of RWK Goodman was quoted in City AM:

While it is good that the Government has acknowledged that the prior excessive tribunal fees of up to £1,200 did not strike the right balance, I don’t think that the tiny dent of £1.3m-£1.7m that the new, much reduced, £55 fees will make in the £80 million annual cost of the Employment Tribunals make the exercise worthwhile.

Anyway, I like a challenge. And, to my mind, it really is not that difficult to devise a modest fees regime that (a) is fair to users, (b) does not obstruct access to justice, and (c) delivers significantly more fee income to the Ministry of Justice than the unfair fees regime set out in the Ministry’s proposal. This is not rocket science. As Tom Hanks would say, if we can send humans to the moon, we can devise a fair, just and effective ET fees regime. (And if you don’t believe Tom Hanks would say such a thing, then you need to go watch his Moonwalkers, at the Lightroom in King’s Cross until 21 April.)

As I noted last week, the Ministry’s proposed fees regime is unfair for two, simple reasons.

Firstly, with the introduction of mandatory Acas early conciliation in 2014, respondent employers are as much ‘users’ of the ET system as claimants, because the State has already provided them with an opportunity to resolve the issue, at taxpayers’ expense. So, if workers are to pay a (modest) fee to pursue an ET claim, employers should also pay a (modest) fee to defend an ET claim.

Secondly, there is no good reason why the tens, hundreds or even thousands of claimants in a multiple claimant case should pay only one £55 fee between them. They are all users of the ET system, and if their case is successful they will all benefit accordingly. Maybe they should each pay a smaller fee than single claimants, but it is simply unfair that they should be able to use the ET system for a few pounds or even pennies each, while single claimants have to fork out £55. (In 2022/23, the 2,579 multiple claimant cases had an average of 21.3 claimants, so the average claimant in a multiple claimant case would have paid just £2.58 towards a £55 fee.)

Assuming (somewhat crudely, but I don’t think it matters that much) that there is one respondent employer for each single claimant and each multiple claimant case (MCC), in 2022/23 (the year on which the Ministry bases the Impact Assessment of its proposal), there were 30,417 single claimants, 32,996 respondent employers, 54,884 MCC claimants, and 1,400 EAT appellants. And you don’t have to have won the Fields Medal to recognise that charging all of those 119,697 users of the ET system, rather than just the 30,417 single claimants and 1,400 EAT appellants, a modest fee makes it much easier to ensure that the fees regime does not create a barrier to justice, while also delivering a more generous contribution to the Ministry’s balance sheet.

For example, the fee for single claimants, respondent employers and EAT appellants could be set at a very modest £35 (the cost of one day’s entry to Alton Towers), and the fee for MCC claimants at £20, and – after allowing for remission on the same basis as set out in the Ministry’s Impact Assessment – the regime would deliver total net annual fee income of £3.2 million, almost twice that of the Ministry’s proposed, claimants-only regime.

What’s not to like? (That’s a genuine question, btw – please do post your answer below.)

Posted in Employment tribunals, Justice | Tagged , , | 1 Comment

Employment Tribunal fees: Stop me if you think you’ve heard this one before

Posted on January 30, 2024 by wonkypolicywonk

A ripple of excitement ran through ’employment law & policy’ X (formerly ’employment law & policy’ Twitter) yesterday, when the Ministry of Justice unexpectedly presented us with an opportunity to dust off a much-used hashtag from the past: #ETfees

It was once said of the (fabulous) Smiths’ song Stop me if you think you’ve heard this one before that it “speaks of where the mind goes at the most desperate and desolate of times”. And the consultation paper issued by the Ministry of Justice yesterday certainly seemed to take a lot of trade unionists, employment lawyers and legal journalists back to one of the Ministry’s most desperate and desolate of times: the justice-denying and ultimately doomed #ETfees regime of 2013-17, dreamt up by cuddly Ken Clarke in 2011 and implemented under Failing Grayling in July 2013.

However, the proposed fees regime set out in the consultation paper – a nominal £55 fee for claimants, and for appellants to the EAT – is very different to that belatedly struck down by the Supreme Court in July 2017, after the supposedly mega-brained judges of the High Court and Court of Appeal had somehow failed to grasp the rather obvious point that fees of up to £1,200 “are in practice unaffordable by some people, and prevent even people who can afford them from pursuing claims for small amounts and non-monetary claims”. The consultation paper laudably states:

The Ministry of Justice recognises that the fees introduced in 2013 did not strike the right balance between meeting the policy objective for claimants to meet some of the costs of the ET and EAT and protecting access to justice. Therefore, in developing the fee proposal subject to this public consultation, careful consideration has been given to the lessons learned following the Supreme Court judgment, especially in relation to affordability, proportionality and simplicity as the three key principles underpinning a fair and balanced approach to setting fees in the ET and the EAT.

The issue of ensuring affordability is particularly acute in the ET given the limited time available to claimants to bring a claim and pay any fee. Claimants have up to 3 months to submit their claim (or 6 months for claims about redundancy or equal pay). The issue of proportionality is equally important when considering the overall level of fee as the remedies sought through the ET and EAT are varied and include numerous non-monetary remedies. The 2018 Survey of Employment Tribunals Applications (SETA) found that for claimants who had been successful at employment tribunal and were awarded a sum of money, 4% were awarded less than £500, with the overall median value of financial compensation received by claimants successful at a hearing being £5,000. Other claimants however sought non-monetary awards. Therefore, it is critical that fees are not set at a level that could render pursuing low value or non-monetary claims irrational and futile.

Given the dire state of public finances, and the fact that the Supreme Court explicitly left the door open for a fees regime based on modest fees (see paragraphs 86 and 87 of the judgment), it was inevitable that ministers would one day come back with a more modest fees regime, and I am somewhat surprised it has taken them six years to do so. And, even if the current bunch of squabbling ministers had not done so, there is a very good chance that incoming Labour ministers would take up the mantle. (Let’s not forget that it was Tony Blair’s Nu Labour government that first tried to introduce ET fees, in 2001, and which later created – in section 42 of the Tribunals, Courts & Enforcement Act 2007 – the extraordinary power subsequently exploited by Tory/Fib Dem Coalition ministers to introduce ET fees by way of secondary legislation in 2013.)

As the trade union UNISON was bemoaning only yesterday: “Libraries, children’s centres and youth services are being closed. Care and services for schools, vulnerable and disabled people are slashed to almost non-existent in some areas.” So, unless and until someone locates the money tree, there is a good case for ET users to make a (modest) financial contribution to the (significant) cost of the ET system. In the words of the Supreme Court (paragraph 86 of the judgment):

Fees paid by litigants can, in principle, reasonably be considered to be a justifiable way of making resources available for the justice system and so securing access to justice.

Is £55 an unaffordable sum? To put that sum in perspective, it costs £82.50 to renew or replace a UK passport. A provisional GB driving licence costs £34, and a TV licence costs £159 per year. A one-day ticket to Alton Towers costs £35, entry to the Tower of London costs £33.60, and the cheapest ticket to watch Manchester City at the Etihad Stadium costs £58. In the Small Claims Court, the issue and hearing fees for a claim worth less than £300 total £62, while those for a claim worth between £500 and £1,000 total £155.

For someone working 35 hours per week on the legal minimum wage (i.e. with an annual salary of £18,964), membership of the trade union UNISON costs £138 per year, basic membership of the trade union Unite costs £112 per year, and membership of the trade union GMB costs £175 per year.

Whatever, as I argued in 2012 and 2013, with the introduction of mandatory Acas early conciliation from 2014, respondent employers are as much ‘users’ of the ET system as claimants, because the State has already provided them with an opportunity to resolve the issue, at taxpayers’ expense. So, if workers are to pay a fee to pursue an ET claim, employers should also pay a fee to defend an ET claim.

Both parties paying the same modest fee would double the total fee income to HMCTS, or allow for an even lower level of fee for everyone, and/or a lower fee or (my preference) no fee at all for those claimants making simple, low-value claims for unpaid wages or missing pay slips. As my good friend Audrey Ludwig of Suffolk Law Centre noted earlier today, such claimants can struggle to make evidenced applications for fee remission.

Furthermore, why should the tens, hundreds or thousands of claimants in a multiple claimant case only pay one £55 fee between them? They are all users of the ET system, and if their case is successful they will all benefit accordingly. Maybe they should each pay a smaller fee, but there is no good reason why they should be able to use the ET system for a couple of pounds each, while single claimants have to fork out £55 (based on 2022/23, the average claimant in a multiple claimant case would pay just £2.58). And, again, the fee income from multiple claimant cases would then allow for a lower level of fee all round, and/or exemption for simple, low-value claims.

Sadly, the consultation paper does not explore or seek views on such alternative fee regimes. But the proposed fees are not due to come into force until November this year, by which time we might have a new, Labour government. And, if they are not simply to scrap the proposed fees for claimants, the new Labour ministers really ought to give serious consideration to those alternative options. Which means shadow ministers should be doing so now.

So it was disappointing, though not surprising, to see a typically dumb, knee-jerk response from the TUC and others yesterday. If all the Tory cuts to the NHS, libraries, children’s centres, and services for schools, vulnerable and disabled people are not to be quickly corrected by an incoming Labour government – and, let’s face it, they won’t be – why should the ET system remain free to its users?

The days when taxpayers shoulder the entire cost of the ET system, without any contribution from users, are gone – at least for the time being. The challenge, therefore, is to devise a fees regime that is fair and does not create a barrier to justice. So the TUC and trade unions need to do more than stamp their feet and yell that “these fees are just an invitation for bad bosses to ride roughshod over workers”.

Shadow ministers need to get some grown-ups in the room.

Posted in Employment tribunals, Justice, Workers' rights | Tagged , , | 2 Comments

Employment Tribunal cases: the new normal

Posted on December 18, 2023 by wonkypolicywonk

The latest set of quarterly Tribunal statistics – published last week – indicates that, having risen steadily from mid-2017 (when fees were abolished) to a Covid-induced peak in late 2020, the number of new Employment Tribunal cases has now settled down at just over half (55%) the pre-fees level seen in 2012/13. While the introduction by HM Courts & Tribunals Service of a new case management system in March 2021 means that comparisons with previous periods may be problematic, the new normal does seem to be about 8,000 new cases per quarter, or about 32,000 new cases per year.

To put this new normal in historical perspective, from 2007/08 until 2012/13 the number of new ET cases exceeded 60,000 every year, and in 2009/10 there were 71,280 single claims and 7,339 multiple claimant cases. The number of multiple claimant cases has now settled down at about 40% of the level seen prior to the introduction of fees in 2013.

In some jurisdictions, such as Unfair Dismissal, Breach of Contract, Pregnancy/Maternity Discrimination, and Redundancy, the number of new (jurisdictional) claims broadly matches the overall pattern shown in the chart above. And in some of these jurisdictions the new normal is well below the level seen in 2012/13 (though this is probably due in part to the impact of the post-2008 economic recession on the number of claims in 2012/13, especially in the case of Redundancy claims).

But in some of the smaller jurisdictions the number of new claims has bounced back to pretty much the level seen prior to the introduction of fees in 2013.

In contrast, however, a number of once magnificent employment law gravy trains now appear to be providing only a relatively limited service.

However, some enthusiasts are hoping to restore the Working Time Directive gravy train locomotive to working order in the near future, thanks to a grant from the Employment Rights (Amendment, Revocation & Transitional Provision) Regulations 2023.

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Employment Tribunal backlog: Down in the MoJ at midnight

Posted on November 9, 2023 by wonkypolicywonk

In June this year – and then again in July for good measure – junior justice minister Mike Freer MP – who almost certainly doesn’t smell of pubs and Wormwood Scrubs and too many right wing meetings – told the House of Commons that the Employment Tribunal backlog “has decreased from 48,000 in February to 41,000 in March this year”. Which, if true, would be deeply impressive. At that rate of progress, the backlog would have been reduced to next to nothing by September – that is, two months ago.

Reader, the Employment Tribunal backlog did not decrease from 48,000 in February to 41,000 in March this year. And the backlog was not cleared by September.

We know this because, this morning, the Ministry of Justice published the latest set of HM Courts & Tribunal Service monthly management information, covering up to September. And, as can be seen from the following chart, this shows that the Employment Tribunal backlog was 37,631 in February, 37,201 in March, and 37,924 in September.

Maybe the Employment Tribunal backlog is just ‘the wrong crisis’ for Minister Freer’s skillset. But you do not have to have won the Chern Medal to understand that a reduction from 37,631 to 37,201 is not as impressive as a reduction from 48,000 to 41,000. Or that an increase from 37,631 in February to 37,924 in September is even less prideworthy.

So, where did the clueless Minister Freer get his meaningless (and misleading) figures of 48,000 and 41,000? The short answer is that, since February this year, HM Courts & Tribunals Service have been engaging in some statistical alchemy, magically shrinking their previously published figures for the backlog. And Minister Freer – or whoever drafted his statements for him – was a bit, well, disingenuous in their selection from the various modified figures for February and March. If you’re feeling a bit nerdy, the full story is set out here, here and here on this blog.

The good news, of course, is that the Employment Tribunal backlog is not as big as – not so long ago – we thought it was. Indeed, at 37,924 it’s down to the level it was (stated to be) at in early 2020, before Covid and the lockdowns pushed it to more than 50,000 in early 2021.

Then again, at 37,924 the backlog is still a lot bigger than it was (stated to be) in April 2018, nine months after the abolition of the Ministry’s justice-denying tribunal fees regime, when it stood at just 22,689. But with the mathematically-challenged Minister Freer in charge, it will probably vanish entirely soon. Indeed, by now there may even be a negative backlog. Or something.

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Employment Tribunal backlog: Getting freer with the data

Posted on August 24, 2023 by wonkypolicywonk

Previously on this blog, I have noted how, since February this year, HM Courts & Tribunal Service has been magically shrinking the backlog of Employment Tribunal cases, by retrospectively revising downwards its previously published monthly management information (MI). The backlog as of December 2022, for example, was 50,518 according to the MI data set published by HMCTS on 13 February 2023, but has been steadily revised down to 40,098 in the data set published on 10 August – an overall revision of 21%.

And this week a curious ‘news’ article in the Daily Mirror about Employment Tribunal waiting times – based on figures released by justice minister Mike Freer a full six months ago, and already two years out of date – led me to an interesting correction by Minister Freer, in July, of an answer he had given to Labour MP Chris Elmore during oral justice questions in June.

On 27 June, asked by Elmore about average Employment Tribunal waiting times, Freer had stated:

Following a merger of IT systems, there is no current data on average waiting times, but the outstanding caseload has reduced from 48,000 in February to 41,000 in March this year because of an increase in the number of sitting days. As well as the increased sitting day allocation, we continue to support and reform the employment tribunals process and to make progress in reducing the backlog.

But on 3 July, this answer was corrected by the Minister to say:

Following a merger of IT systems, there is no current data on average waiting times, but the outstanding caseload has reduced from 48,000 in February to 41,000 in March this year, in part because of an increase in the number of sitting days. As well as the increased sitting day allocation, we continue to support and reform the employment tribunals process and to make progress in reducing the backlog.

And with good reason. Because a reduction of 7,000 cases in just one month is pretty impressive – at that rate, we could expect the backlog to have evaporated completely at some point in the next few weeks. However, as can be seen from the following table, the backlog was reduced by 7,600 cases (16%), from 48,605 in February to 41,005 in March, only by the HMCTS’s retrospective revision of the data between the MI data set published on 13 April 2023, and the data set published on 13 July that was presumably available to Minister Freer (and whoever drafted his answer for him) on 27 June.

In fact, according to the most recent MI data set, published by HMCTS on 10 August, the backlog fell from 40,130 in February, to 39,724 in March – a fall of just 1% – before increasing to 40,938 in May, and then falling marginally to 40,610 in June. Which is just 335 cases fewer than in June last year, when – according to this most recent data set – the backlog stood at 40,945.

And, at the time that Minister Freer corrected his previous answer to Chris Elmore, on 3 July, he would have known that, according to the then latest (but not yet published) data set, the backlog had fallen from 41,405 in February, to 41,005 in March – a reduction of just 400 cases, not 7,000 as claimed in the Minister’s answers.

In short, over the past year the (welcome and clearly much needed) increase in sitting days would appear to have reduced the backlog by a mere 335 cases (0.8%). Everything else is just data alchemy. And Minister Freer has been a bit, well, free with his parliamentary answers.

Here is what has actually happened with the backlog of Employment Tribunal cases over the past year, according to the latest set of monthly HMCTS management information, published on 10 August. If you can spot where the backlog shrank by 7,000 cases in the space of one month in early 2023, as claimed by Minister Freer last month, then all I can say is you should have gone to Specsavers.

Posted in Justice | Tagged , | 1 Comment