Brexit: Till we get the healing done

So, as Jim Pickard of the Financial Times noted on Twitter yesterday, Jeremy Corbyn “has worked out what would heal the divided nation, and it’s a [second] referendum on EU membership”.

Yep, in his speech to the Labour Party conference in Brighton, Corbyn said:

Within three months of coming to power a Labour government will secure a sensible deal based on the terms we have long advocated and discussed with the EU, trade unions and businesses: a new customs union, a close single market relationship, and guarantees of rights and protections. And, within six months of being elected, we will put that deal to a public vote alongside ‘remain’. And as a Labour prime minister I pledge to carry out whatever the people decide.

Wow Jezza! Come on, leave me breathless!

Except … that breathless schedule begs at least three questions: Is six months really long enough to legislate for, and hold, a ten-week referendum campaign? Even if it is, what does that imply in terms of the extension of the Article 50 period that would need to be requested from the EU27 at the outset? And – given the answers to those two questions – how might the package go down on the doorstep in the general election campaign that Jezza hopes will climax in him picking up the keys to 10 Downing Street? (Or does he?)

And that third question matters. Because, if Jezza can’t take possession of those keys to 10 Downing Street, there ain’t gonna be any second referendum, period. Yep, that’s the uncomfortable position into which the People’s Vote campaign – masterminded on Monday mornings by a manel of closet Corbynistas such as Alastair Campbell, Peter Mandelson and Tom Baldwin – has got itself: unless their suddenly beloved Jezza triumphs in the coming general election, they’re fucked.

So, assuming that general election happens in late November or early December, could a newly-elected Labour government really legislate for, and hold, a People’s Vote by late May or early June next year? Well, some time ago, the much-loved Institute for Government set out how, even with a fair bit of (not terribly democratic) corner-cutting, and assuming the legislation sails through each house of Parliament unopposed in a matter of days, it would take a minimum of 21 weeks to do that.

Which means a second referendum in late May or June is just about doable, were the legislation to be introduced within days of Labour ministers walking into their departments, and then sail through Parliamant unopposed. Shall I say that again? Were the legislation to sail through Parliament unopposed. Good luck with that.

However, unless that amazing, unicorn-free new ‘deal’ with the EU is successfully negotiated within days, introducing the referendum legislation so soon would require the wording of the referendum question to be decided, and the Electoral Commission to start testing that wording (a process that accounts for the first eight of the Institute for Government’s 21 weeks), before anyone can say with any certainty what that deal actually looks like – or, at least, how and why it is so much better than the ‘deal’ negotiated by Theresa May and Ollie Robbins but rejected three times by MPs. I suspect the Electoral Commission (and many others) would very strongly urge ministers to conclude their negotiation with the EU27 before introducing their referendum Bill.

Which is not necessarily a big problem. In reality, a new Labour government would not be negotiating ‘a new deal’. It would simply be negotiating some changes to the non-binding Political Declaration that comes free with the Withdrawal Agreement negotiated by Theresa May and Ollie Robbins. The hated Withdrawal Agreement itself would not change. In short, the most a new Labour Government could hope to conjure up is May’s Blindfold Brexit deal with some ‘customs union’ ribbons tied on.

So, it might well not take three months to complete that ‘negotiation’, as Jezza allows for in his breathless schedule. Tom Kibasi of the IPPR thinks it could all be done in an afternoon. But it seems more realistic to assume – for the purposes of agreeing that Article 50 extension – that it would take at least a few weeks to complete the process of negotiating a revision of the Political Declaration text, dotting the ‘i’s and crossing the ‘t’s, and getting sign off from the European Parliament. What, you forgot that stage?

That means we are looking at a second referendum in late June or early July, at the very earliest. If the legislation sails through Parliament unopposed – got that yet? But the shiny new Labour government would first need to request, and get the EU27’s agreement to, an Article 50 extension some way beyond the date of polling day. Because, were the referendum to result in another vote to ‘leave’, the (secretly pleased) prime minister and his colleagues would need some time to make the necessary final preparations for exiting the EU.

With the holiday season probably not being the best time to have to make those final preparations, and allowing a bit of leeway in case, you know, the legislation does not sail through each house of Parliament unopposed in a matter of days, we are probably looking at the brand new Labour government having to request – or the less starry-eyed EU27 insisting on – a one-off extension to the end of 2020. The EU27 would not want Jezza coming back every few weeks to ask for yet another short extension because, let’s say, the referendum Bill isn’t sailing through Parliament unopposed, or Nigel Farage has been granted leave by the High Court to bring a judicial review of the referendum question.

Sure, Corbyn & Co can (and no doubt will) continue to claim they would have it all wrapped up in six months. But I rather suspect that, in the heat of a general election campaign, that flimsy and unrealistically optimistic claim will rapidly fall apart under the intensified scrutiny of journalists, and of voters heartily sick of Brexit.

Which brings us to the last of my three questions. Not even the most ardent remainer – I am one myself – actually wants a second referendum. The PVers just see it as ‘the best, and most democratic way’ of resolving the grisly Brexit impasse (which, let’s not forget, they helped to prolong by deliberately undermining and then voting down every possible compromise form of Brexit, from Norway Plus to May’s Withdrawal Agreement).

I happen not to agree with them on that – I think a second referendum would prove to be a ghastly repeat of the horrible mistake of 2016. But, more importantly, I suspect the combined general election offer of a further delay – sorry, Article 50 extension – to the end of 2020, and the unalloyed joy of a second, 10-week referendum campaign, will simply bomb on the doorstep. And, if it does, there will be no Labour-led government (or GNU), and no second referendum. It’s almost enough to make me vote Lib Dem. Almost.

As Van Morrison sang in “Till we get the healing done”, sometimes you’ve just got to sit down and cry.

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ET claim numbers: nothing to see, move along

So, the latest set of quarterly employment tribunal statistics – covering the period April to June 2019 (Q1 of 2019/20) – was published by the Ministry of Injustice yesterday, and it is time to play another round of that thrilling parlour game, Are ET Claim Numbers Continuing To Surge After The Abolition of ET Fees?

Well, as the Ministry notes in its summary document, the number of single claims/cases increased by 14%, compared to the same quarter in 2018. And the Ministry suggests that this is “most likely due to the continued effect of the abolition of ET fees on 26 July 2017”.

However, the increase was only 7.4% when compared to the previous quarter, so it’s not clear to me whether this counts as a “continued effect”, or just a mild upwards trend that might be due to the abolition of fees two years ago, or might reflect other more current influences (such as the record number of people in employment, or the impact of Brexit). Whatever, here’s a chart, and you can make your own assessment.

Interestingly, the picture is a little different when we look at the number of jurisdictional claims, as I did late last night to see which if any jurisdictions might be driving this mild upwards trend in single claim/case numbers.

For this exercise, I compared the two six-month periods, January to June 2018, and January to June 2019. Both periods post-date the abolition of fees (in July 2017), of course, so the comparison should reveal any ongoing trends. And the results are somewhat surprising, to me at least.

Because, as the following table shows, in 14 of the 22 jurisdictions (including ‘Others’) identified by the Ministry of Injustice in its statistics, the number of claims fell – in many cases quite significantly. And the total number of jurisdictional claims fell by 19.3%.

These 14 jurisdictions include most of the ‘high volume’ jurisdictions, such as Working Time Directive (down 57.2%), Equal Pay (down 18.1%), and Unfair Dismissal (down 4.4%), as well as six of the seven discrimination jurisdictions: the number of Sex Discrimination claims fell by 14.7%, Age Discrimination claims fell by 47.0%, and Pregnancy Discrimination claims fell by 8.3%. In contrast, the number of Breach of Contract claims rose by just 1.6%, and the only jurisdiction in which there was a substantial increase was ‘Others’ (which rose by 49.0%).

Yes, yes, as I have said myself many, many times, care must be taken when analysing the number of jurisdictional claims, as these vary significantly over time (in some jurisdictions at least) due to the influence of large multiple claimant cases. However, in recent months, that hasn’t stopped the planet’s leading employment law firm, GQ Littler, the CIPD and supposedly expert HR publications such as Personnel Today from pushing or running stories about supposedly astonishing spikes in the number of Disability, Pregnancy and Sex Discrimination claims.

Jurisdiction Jan – June 2018 Jan – June 2019 % change
Age discrimination 1,513 802 -47.0
Breach of contract 7,118 7,230 1.6
Disability discrimination 3,290 3,439 4.5
Equal pay 17,197 14,084 -18.1
National Minimum Wage 233 107 -54.1
Part-time workers Regs 97 116 19.6
Public interest disclosure 1,347 1,362 1.1
Race discrimination 1,792 1,655 -7.6
Redundancy (inform & consult) 3,994 2,747 -31.2
Redundancy pay 2,441 3,118 27.7
Religion/belief discrimination 387 321 -17.1
Sex discrimination 4,182 3,567 -14.7
Sexual orientation discrimination 217 196 -9.7
Suffer detriment/unfair dismissal – pregnancy 833 764 -8.3
TUPE 373 363 -2.7
Unauthorised deductions 10,839 11,765 8.5
Unfair dismissal 10,217 9,763 -4.4
Working Time Directive 36,654 15,703 -57.2
Written pay statement 1,866 314 -83.2
Written statement (dismissal) 146 195 33.6
Written statement (T&Cs) 705 634 -10.1
Others 9,977 14,870 49.0
Total 115,418 93,115 -19.3

Yesterday, after I tweeted the chart above, employment lawyer and #ukemplaw tweep Pete Holmes commented that his firm “are down on claims from last year. Unless we have a sudden surge we’ll have dealt with fewer early conciliations and [ET] claims compared to 2018”. The table above suggests Pete’s firm may not be the only one.

However, it is surely only a matter of time before GQ Littler have an article in The Times or Personnel Today about the rocketing 33.6% increase in Written Statement of Reasons for Dismissal claims. All 49 of them.

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Brexit: Do Johnson, Gove & Cummings have a cunning plan?

Do Johnson, Gove & Cummings have a cunning plan? Honestly mate, I haven’t got a fucking clue. No one has. Maybe not even them.

No, it’s a mug’s game making predictions about what may happen between now and Halloween – or, more to the point, between now and the EU Council meeting on 17-18 October, at which our fate will most likely come into sharp focus, if not actually get sealed.

However, we do know a few things. And these give us some guide as to what might just happen, and what probably won’t happen.

The first thing we know is that, over the past three years, Johnson has had a ring-side seat as Theresa May’s place in the history books shrivelled to nothing more than being one of the names in the hat – along with Gordon Brown and Johnson’s erstwhile Bullingdon Club wank-buddy, David Cameron – for the accolade of ‘worst prime minister, ever’.

Does anyone seriously think that – having now read or listened to the civil service’s confidential briefings on the likely impact of ‘no deal’ – a man who sees himself as the 21st Century’s Winston Churchill is about to risk a similar fate by allowing the UK to crash out of the EU with no deal? Because, while Johnson may not know for sure just how bad ‘no deal’ would be, he (or Cummings) must know it could be very, very bad indeed.

And, as our former ambassador to the EU, Ivan Rogers, says of those who think that, “if we just have the guts to walk away”, the EU27 will “come running for a series of mini-deals [assuring] full trading continuity in all key sectors on basically unchanged Single Market and Customs Union terms”:

I don’t know what tablets these people are taking, but I must confess I wish I were on them.

So, were crashing out to prove as bad as most sensible people expect, even someone as slippery as Johnson would then struggle to avoid being blamed for the economic and social chaos. It’s one thing for 50-something men in Essex to fantasise about World War II, but quite another for them to find themselves living through a realistic re-enactment.

No, that is all too risky. Johnson has schemed and back-stabbed a long, long time to become Prime Minister, and he’s surely not going to risk having his name thrown into that hat alongside May, Cameron and Brown after just a few months. Johnson wants five or even up to ten years in Downing Street (I imagine any longer would be too much like hard work, when there are spondoolies to be made from the memoir/diaries and lecture tours).

All of which also means that Johnson is unlikely to engineer a general election much before he has ‘delivered’ Brexit – or, at least, before he is able to claim that he has almost delivered Brexit (more on this below). As both 2015 and 2017 demonstrated, general election campaigns have a habit of not going to plan, and if by polling day it’s looking as if Brexit might somehow not happen after all, the Brexit Party might well burn the Tories alive and so inadvertently hand the keys of Downing Street to the “dreadful hearty beast”, Jeremy Corbyn, or to the Remainer wet dream of a stuffed and mounted Gnu led by Jo Swinson, Ken Clarke or Caroline Lucas. On 6 August, Mujtaba Rahman of Eurasia Group reported that “Johnson has told his inner circle he cannot risk an election before Brexit is delivered”, and “we think his view has been reinforced by [the] Brecon & Radnorshire by-election.” No shit, Sherlock.

G-no, g-no, g-no, Johnson’s not that daft. And Cummings certainly isn’t. However, with a majority of just one, and with further by-elections and even possible defections not far beyond the horizon, we know that Johnson does need to have a general election soonish. He just needs to be reasonably confident that that election will deliver him the majority he needs to enjoy at least five years larking about in Downing Street.

With ‘no deal’ ruled out, this means Johnson needs a deal with the EU27. It’s pretty clear he’s not going to get a new deal (and, at the moment, he’s not even trying). But there is plenty of scope for last-minute, high drama negotiations to produce lots of pretty ribbons – in the form of amendments and/or additions to the (essentially meaningless) Political Declaration that comes free with the Withdrawal Agreement-based, Blindfold Brexit deal bequeathed to us by Theresa May and Olly Robbins – for Johnson and the EU27 to tie around that old deal at the EU Council meeting on 17-18 October.

[Addendum, 21 August: Funnily enough, this week, German chancellor Angel Merkel was reported as saying, during a trip to Iceland, that “on the backstop issue, this is a question of the Political Declaration on [the future relationship]. There is no need to reopen the [Withdrawal Agreement] for a practical solution.”]

Nigel Farage, Mark Francois, and the DUP would of course blow a gasket. BETRAYAL! But the DUP have a price for everything, and Johnson has a nodding dog Chancellor to pay it. No one really listens to Mark Francois, other than BBC Newsnight producers and presenters. And what reasonable person could deny that the bloody French and Germans have put poor old Boris – who tried his best, unlike that wimp Theresa May – in an impossible situation? (I’m being sardonic here, you do realise that, yes?)

So, on the Monday after the EU Council meeting, with just 10 days left on James ‘not so’ Cleverly’s countdown clock, Johnson calls a general election (and immediately dissolves Parliament) on a platform of ‘Back me and get the only possible Brexit six weeks from now – golly gosh, terribly sorry about the short delay, old bean, nothing I could do, bloody Frogs! – or sack me and get the chaos of Corbyn or a Gnu’. The EU27 agree to a short, technical extension of the Article 50 period, to ‘allow the democratic processes to play out’. And Nigel Farage’s frantic claim that Johnson hasn’t actually delivered Brexit leaves him looking a bit of a party pooper, given we’re only talking about a delay of a few weeks. It will all be over by Christmas!

Fixed-Term Parliaments Act, you say? Yep, that went well on 18 & 19 April 2017, when literally everyone assumed that Theresa May was on course to crush both Labour and the Remainer saboteurs. Believe it or not, political turkeys cannot resist voting for a general election Christmas.

Johnson would never get a beribboned Withdrawal Agreement through the Commons, you say? Well, he would if he’s just won a general election on a platform of leaving the EU on such a basis before Christmas. He’d have the necessary majority, and a clear mandate.

But … surely Downing Street “stands ready to do whatever is necessary to bring about Brexit on 31 October – deal or no deal”? Well, maybe. Or maybe that’s just fake gnus.* As David Hayward noted in a must-read Twitter thread a few days ago:

Where there’s smoke, there’s not necessarily fire. [And] there are great clouds of ‘no deal’ smoke: Michael Gove, special meetings (twice a week and through August – who can imagine such sacrifice!), a £100m pamphlet, all manner of vim and vigour, freshly polished shoes, and Dominic Raab.

But. None of this amounts to much more than someone shouting “squirrel!”, very loudly, all the time. There’s tons of real work to do if you’re serious about ‘no deal’. And none of this is it.

Indeed. The most substantial proposal to come out of Michael Gove’s bi-weekly meetings so far is to make 1 November a Bank Holiday. Yes, really. This is just play-acting. As David Hayward continues in that Twitter thread:

If I was cynical, I might consider the whole non farrago (think smouldering wet leaves) a media management exercise targeted at the worshipful and the gullible to generate regular EXCLUSIVES to sustain a ‘lots of high energy stuff going on’ narrative.

Who’s the audience for this story? It’s not the EU27. The idea that the the EU negotiating team is going to be persuaded of ‘do or die’ by a bit of pamphleteering and Dominc Raab is for the birds.

In the words of the master of fake gnus, Donald Trump: “What you’re seeing and reading is not what is happening”.

So, we’re into a late November or early December election – Tory campaign slogan: “Help make Christmas come early this year!” – and the best we Remoaners can offer is a somewhat defeatist PV100 tactical voting target list to “help install pro-[second] referendum MPs or defeat MPs or candidates who oppose a second public vote”. But many potential pro-remain voters don’t want a second referendum – only about 1.3 million have signed the various PV petitions, but more than 6 million signed the ‘revoke’ petition in just a few weeks. And Caroline Lucas – who invented the People’s Vote – has already given the game away by saying she and other supposed democrats would ignore any second referendum vote for ‘leave’ in any case. Doh!

In other words, we’re back to July 2016, and to journalists demanding to know of PV-supporting candidates: “How many referendums do you want to have before you get the right answer?” That wouldn’t win a snap election against a super-charged Johnson and his extravagantly beribboned Brexit deal. And, if you can’t win that election, there ain’t gonna be any second referendum, period. (So, er, you may as well go for broke and stand on a platform of ‘revoke’ – just saying). But hey, at least the PVers would finally have answered the question of what options to put on the PV ballot paper.

Sounds implausible? Of course it does. And, if that election were to produce yet another hung Parliament, then just maybe the PVers would still be in with a shout. But how confident are you that it would produce another hung Parliament, in the circumstances I’ve just outlined?

Whatever, run me through your scenario, and I’ll tell you how it is just as implausible. Dominic Grieve and Oliver Letwin have a cunning plan for MPs to ‘take back control’, you say? What, like all their previous cunning plans? They went well. And now Grieve and Letwin are up against a united and super-charged government machine, not the near-dead shambles led (or not) by Theresa May. As constitutional expert Professor Mark Elliott of Cambridge University concludes:

The Supreme Court’s Miller judgment handed Parliament a golden opportunity to take control of the Brexit process. That opportunity was immediately squandered by parliamentarians who — for fear of being castigated as “enemies of the people” — fell over themselves to write the Government a blank cheque when they enacted the Notification of Withdrawal Act. That Act handed the Government complete discretion over when Article 50 should be triggered and provided Parliament with absolutely no instruments of control over the ensuing process. Ever since, Parliament has been playing catch-up.

As the autumn unfolds, and as the cliff-edge beckons, we will see whether the majority of parliamentarians who are opposed to a no-deal Brexit can recover the situation. Parliament does have options open to it. But those options are limited in legal terms — and decidedly so in political terms.

Or Grieve, Letwin and other Tory MPs will help vote Johnson down in a Vote of No Confidence in early September? Really? Well, with Labour selfishly – but predictably, perhaps even inevitably – refusing to become part of or support a Gnu, the most that could come of that is, er, a general election. Which, under my scenario, Johnson would call a few weeks later in any case. And, er, the Prime Minister gets to set the date of polling day. This would even save Johnson the minor trouble of having to explain why he’d changed his mind on calling an election. Genius.

[Addendum, 21 August: As for that elusive Gnu, I think Marina Hyde hit the nail on the head in her regular column in last Saturday’s Guardian:

Three years on from the Brexit vote, what best crystallises where we are? Perhaps that nowhere even close to 326 politicians can unify on what would constitute a government of national unity. The Liberal Democrats will do anything to stop Brexit, except for the things they won’t; Labour would love to stop the Tories’ version of Brexit, but first they just want to look busy and set this quick trap for the Lib Dems; the Greens want the headlines for a day and they’ve got a plan just batshit enough to secure them; and so on. Dominic Cummings must be cackling. The only worse form of unity was a Mitford.

So while it’s positive to have had leadership of the prospective government of national unity whittled down to just under 16 million candidates, it does feel a little bit near the business end of things for politicians to be indulging in the weapons-grade wankery we’ve seen this week.]

Whatever, the bottom line is, something that some or even many people currently think implausible, has to happen. And it will happen. Buckle up!

* Many thanks to the ever pun-ready @wonklifebalance for that one.

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Sharp fall in waiting time for next garbage article on ET claims

As if driving around Madrid airport four times trying, and failing, to find the car rental return depot wasn’t enough to dampen my spirits at the end of my family holiday on Monday, my extended hours in the departure lounge were soon darkened further by a friendly #ukemplaw tweep alerting me to an article in the Guardian, headlined “Employment Tribunal claims taking eight months to be heard”.

Employment tribunal claims in the UK are taking an average of eight months to be heard, as the system struggles under government funding cuts and a surge in complaints.

A report [sic] found that waiting times have risen for the fourth year in a row, meaning the average delay between a claim being lodged and an employment tribunal taking place is now 237 days. This compares with 207 days last year, according to research [sic] by employment law firm GQ Littler.

Raoul Parekh, a partner at GQ Littler, said: “Employment tribunals will soon reach breaking point. Eight-month delays are just not sustainable and can be very challenging for both parties involved.”

Yes, it’s my good friends GQ Littler, who modestly describe themselves as “the world’s leading employment law firm”. And, according to the latest set of official ET quarterly statistics, published by the Ministry of Injustice on 13 June, it is true that, in the last quarter of 2018-19 (i.e. January to March 2019), the average age on disposal of single ET claims/cases was 33 weeks (7.6 months) – six weeks more than in the same period in 2017-18. But I’m afraid the article is not going to win Guardian journalist Kalyeena Makortoff the Pulitzer Prize for investigative journalism. Because the rest of the passage quoted above – and so the premise of the whole article – is little more than garbage.

There is, of course, no ‘report’ by GQ Littler as such. Or, if there is, they are keeping it surprisingly well hidden (they have not responded to my request for a link to it). So I have no way of knowing the basis for their claim that “waiting times have risen for the fourth year in a row”, or where the figures of “237 days” and “207 days” come from – the official statistics give the average age on disposal only in weeks.

However, I do know – again, from the official statistics published by the Ministry of Injustice, which are freely available online, even to Guardian journalists – that the average age on disposal of single ET claims/cases was 41 weeks in 2014-15, 29 weeks in 2015-16, 28 weeks in 2016-18, 27 weeks in 2017-18, and 30 weeks in 2018-19. So, er, waiting times have not “risen for the fourth year in a row”.

To make it easy for Guardian journalists, as well as for lawyers at the solar system’s leading employment law firm, those figures are even collated in this handy answer of 9 July 2019 to a Parliamentary Question tabled by the shadow justice secretary, Richard Burgon MP. And, if an average waiting time of 30 weeks is “unsustainable”, goodness knows how everyone coped in 2014-15, when it was 41 weeks.

It goes without saying that an average figure does not tell the whole story: an average age on disposal of 30 weeks (6.9 months) is entirely consistent with some cases taking much longer than that. Also, multiple claimant cases tend to take very much longer: according to the official statistics, in 2018-19, the average age on disposal of such cases was 126 weeks (29 months). But look on the bright side: in 2017-18, it was 245 weeks (56.5 months, or 4.7 years), and back in 2014-15 it was 184 weeks (42.5 months).

In short, it has for some months been abundantly clear from anecdotal evidence that the failure on the part of the Ministry of Injustice – until very recently – to respond to the entirely predictable rise in the number of ET cases following the abolition of fees in July 2017, with an appropriate increase in judicial and administrative resources, is currently resulting in very long delays in the resolution of many cases. However, things are not quite as bad and “unsustainable” as GQ Littler and the Guardian suggest. And Kalyeena Makortoff might have had a better chance of bagging that Pulitzer Prize if she had at least acknowledged that, in April this year, 58 new ET judges (51.5 FTE) belatedly joined the ET system. They may or may not prove to be the cavalry – time will tell – but they will help.

On the other hand, it is now clear that the waiting time for the next garbage press article based on a non-existent research ‘report’ by GQ Littler has fallen sharply. As previously noted on this blog, in early June the galaxy’s leading employment law firm got its name in the papers by wrongly claiming there has been “a big jump in [ET] pregnancy discrimination claims in the era of #MeToo”.

Then, just four weeks later, it scored big with near-identical articles in the Financial Times, the Daily Mail, the Metro, and the Times about an alleged “spike” in the number of ET sex discrimination claims in, er, the era of #MeToo:

Revelations of sexual harassment in Hollywood and business contributed to a 69 per cent jump in the number of sex discrimination claims brought to British employment tribunals in the year to March, according to an employment law firm.

Research [sic] by GQ Littler showed that 9,340 claims were lodged in tribunals in Great Britain in 2018-19, compared with just 5,522 in the year to March 2018. The spike follows revelations by women, in what became known as the #MeToo movement, of sexual harassment by powerful men.

The claims brought to employment tribunals cover myriad forms of sexual discrimination, including in hiring and other forms not related to harassment. The statistics do not record the form of sex discrimination alleged.

However, Hannah Mahon, a partner at GQ Littler, attributed the spike largely to a big increase in the public airing of sexual harassment claims. “It’s a much more public thing now,” Ms Mahon said of awareness of sexual harassment. “People are starting to understand their rights and feeling less shy about speaking out.”

I really can’t be bothered to write many words about this non-existent “jump” in ET sex discrimination claims, but here’s a chart (based on the very same official statistics ‘researched’ by GQ Littler) that is pretty conclusive about the nature of that “69 per cent” increase in claims in 2018-19, I think.

Suffice to say, in each of June and August 2018, there were one or more large multiple claimant cases. We can see this from the (freely available) official statistics: in August, for example, all but 298 of the unusual spike of 3,083 claims were lodged in just one region (Scotland). Similary, in June, all but 374 of the unusual spike of 1,888 claims were lodged in, er, Scotland. And, in the same months, Scotland also saw unusual spikes in equal pay claims. Doh!

But such multiple claimant case-based spikes do not a rising trend make. And, if there isn’t a rising trend, it can’t possibly be explained by #MeToo – not even by a legal eagle like Hannah Mahon. Indeed, if we take the figures for Scotland out of the equation, in 2018-19 the number of ET sex discrimination claims fell by 7.7%, from 5,269 to 4,864. I wonder what the universe’s leading employment law firm has to say about that.

And now, this week, we have “ET waiting times have risen for the fourth year in a row”. What will next week bring us from GQ Littler? Who cares? But, while we wait, here’s a nice photo of the Wonky family enjoying some cervezas in Caceres.

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

ET claims: the ultimate chart show

A few days ago, on this blog, I noted the “big jump” in the number of articles in the #HR specialist press and elsewhere about the number of employment tribunal claims/cases, all featuring an eye-catching but totally rubbish theory by some law firm trying to drum up business from employers.

It’s an old trick, and I’m sure last week’s dire examples won’t be the last. So, having finally worked out how to change obscure settings on my Mac to enable me to access the monthly ET statistics as well as the quarterly ones – some time ago, the Ministry of Injustice changed the operating system used to publish the statistics, and the new system is not Mac user-friendly – I’ve decided to populate this post with up-to-date charts of the monthly number of ET claims in each jurisdiction. Then, if someone approaches you with a fishy story about an ‘explosion’ or ‘surge’ of claims in any one jurisdiction, you can quickly check it out here. You’re welcome.

In each chart, the red bar marks the introduction of ET fees, in July 2013, and the green bar marks the abolition of those fees, in July 2017. Note that, where a bar goes off the scale, that is usually because it is way off the scale (these jurisdictional charts include all the claims in multiple claimant cases, remember). And, if the law firm (or their PR) is pitching you a story based on a comparison between a period wholly or partly between the red and green bars, and a period to the right of the green bar, then it is bollox. Because all the comparison will be showing is the impact of the abolition of ET fees in July 2017.

Any assertion of a current and significant increase in claims in any one jurisdiction needs to be supported by a comparison between two separate periods (each at least six months long) to the right of the green bar – that is, two periods subsequent to July 2017. Indeed, they should be subsequent to September or even December 2017, as in many jurisdictions it took several months for the impact of the abolition of fees to be fully realised.

I will update each chart every three months, as the latest set of quarterly statistics is published. And I will (probably) get better at formatting the charts to make them more consistent in appearance. Please feel free to use them any way you see fit. Because we can only have a proper debate about access to justice in the workplace if that debate is informed by evidence, not by silly headlines and proxy advertising in media outlets.

The next chart shows the sum of all discrimination-related claims (i.e. age, disability, race, religion/belief, sex, sexual orientation and pregnancy detriment). From this, we can see that Britain is becoming a fairer country. Or something.

And just look at the number of unfair dismissal claims exploding!

But – whoa! – is this a ‘growth industry’? Someone tell GQ Littler! They could get a piece in The Times on the back of this.

Don’t ask me what’s going on with WTD claims. Ask Sean Jones, or someone like that.

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ET claim statistics: No alarms, no surprises

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.

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Brexit: a progress report to the EU27

Back in April, when the EU27 agreed to grant the UK another six and a bit months to decide what Brexit means, they wisely thought it prudent to use their regular Council meeting on 20-21 June to take a rain-check on how the UK is using the time that Donald Tusk famously urged it not to waste.

That EU Council meeting is the week after next. Yes, doesn’t time fly when you’re having fun allowing Nigel Farage to undermine your centuries-old democracy!

So, how might the conversation between the UK and the EU27 go?

EU27: Thank you for coming in. We really appreciate you taking the time to update us on how you are using the Article 50 extension agreed on 11 April to, er, sort out Brexit.

UK: Hey, no problemo! Everything is fine!

EU27: It is? Maybe you could expand a little?

UK: Of course! Well, it’s been a busy time. We held the European Parliament elections, just like you told us we had to. We Brits always play by the rules, ha ha!

EU27: Yes, we know. And, er, how did that go?

UK: Fabulous! We re-elected Nigel Farage. His Brexit Party got 32% of the vote! And we elected Ann Widdecombe! She’s so funny, you’re gonna love her! We’re thinking she might be good for the Equalities Committee. Is there a vacancy?

EU27: Er, we’ll come back to you on that. Anything else?

UK: You bet! We dumped our Prime Minister! She fucking cried! It was hilarious. You should have seen the memes on Twitter!

EU27: Yes, we saw them. But who is in charge now?

UK: Fuck knows! Could be Boris, could be Govey. Or, if you’re really lucky, Dominic ‘space cadet’ Raab – we know how much you love him! Though let’s be honest: Rory’s done some fantastic selfies in Kew Gardens and other places. He walked across Afghanistan! And he was in MI6! But what a great bunch. Four of them did PPE at Oxford! And Esther has an MA in Radio Journalism. So, everything’s gonna be fine. Just chill.

EU27: Okaaaay. Anything else you’d like to tell us about?

UK: Yeah, we had Donald Trump and his entire family to stay. Totally fuck-off banquet – took four days just to lay the table. Donald agrees with Nigel, who says we should leave the EU on 31 October, deal or no deal. And Donald loves Boris, who also says we should leave the EU on 31 October, deal or no deal. So, we’re all on the same page now.

EU27: Marvellous. But, er, has your Parliament made any progress with any Brexit-related legislation, or anything like that?

UK: You must be fucking joking! When would we have had the time for that? We had the Easter recess, straight after we agreed the Article 50 extension, and then we had the Whitsun recess. You do appreciate the importance of Whitsun, yes?

EU27: We do. But we are not trying to leave the complex legal framework of the EU after 45 years. You are.

UK: Well, talk to your car manufacturers, and make us an offer! We’ll discuss it with Nigel and, you know, get back to you. Anyway, before we finish, a heads up: we might have a general election soon. Or a second referendum. We just need to work out what to put on the ballot paper. Don’t suppose you’ve got any ideas for that?

EU27: We think that’s probably a matter for you. But, going back to the Conservative Party leadership contest, when will we know for sure who is the new prime minister?

UK: Depends how many more chaps want to throw their hat in the ring! Or chapesses, obviously. But we’re hoping to have it all done and dusted by the last week of July.

EU27: Okaaay. And what happens then?

UK: Summer recess, innit.

EU27: *sighs* Right, of course. Until when?

UK: We’re back on 2 September. But only for two weeks. Then it’s the party conference season recess. Obviously. Until 7 October.

EU27: So, if we’ve got this right, once you’ve finished electing a new prime minister, you’ll have just 15 parliamentary sitting days before we meet again at our Council meeting on 17-18 October?

UK: You know what? We haven’t even counted! Ha ha! But yes, 15 days sounds about right.

EU27: Fifteen days isn’t very long. You’ve had 122 sitting days since we signed off the Withdrawal Agreement in November, and … er, nothing has changed. Other than that you’ve dumped your prime minister, elected 29 Brexit Party MEPs, and had Donald Trump over to tell everyone how great Boris Johnson and Nigel Farage are.

UK: Whatever.

EU27: *weeps*

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