Employment Tribunals: The Times they are a-changin’

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

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

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

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

Comment: Gosh, tell me more, Dominic.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But then Covid 19 hit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comment: First Tony Blair, now the Paralympics.

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

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

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Binary arithmetic

News that the global Covid19 lockdown has led to two pandas in Hong Kong Zoo mating for the first time in ten years seems as good a reason as any for me to blog, for the first time, about sex. Or, more accurately, about sex and gender.

The ongoing and often toxic debate around sex and gender can feel intimidatingly complex and difficult to understand. So complex, indeed, that it is easy to conclude you need a PhD in human biology or Queer Theory, or both, to venture even just a mild opinion on the matter. And, when I say toxic, I mean toxic. Which is partly why I’ve not blogged about the issue before now. As Helen Lewis wrote in the New Statesman in 2018:

Most people have taken one look at the current debate over gender and decided to read [or write] about something less inflammatory, like the Israel-Palestine conflict.

But having read and thought about it (quite) a bit more, I’m not sure it is that complex, really. And I suspect the impression that it is complex serves the interests of the intellectually incurious people who think they can win a debate on the subject by shouting “clownfish”, “bimodal distribution”, or simply “there is no debate”.

Yet there is a debate to be had. Boris Johnson and his Cabinet of Fools are in power, and those undemocratically chanting “No Debate!” may come to find themselves on the wrong side of that argument. On the contrary, we desperately need to have a debate, as that is the only way we will identify and implement equitable and sustainable public policy solutions to the challenges faced by people who identify as trans. And those challenges are real.

At the same time, the sex-based oppression, violence and discrimination experienced by women is just as real (*understatement klaxon!*). Modern societies have made considerable progress in addressing this long-standing and acute inequality in the life experience of women and men, but there is still a very, very long way to go. So any debate about sex and gender – including how to address the challenges faced by trans people – needs to respect and be informed by this context. In particular, it needs to respect women’s hard-fought rights to single sex spaces. If the ever-growing number of trans identities are ‘valid’, then so are decades (if not centuries) of rape, domestic violence and murder statistics.

I’m not usually regarded as much of an optimist, but on this I do think it should be well within our capacity to navigate the potential tensions, and find equitable and sustainable policy solutions (which means they have to be accepted if not supported by a majority of the general population). If we can put a (cis)man on the moon, etc etc. I just think we need to be clear and honest about some basic facts of life.

Of course, it doesn’t actually matter what I think. I have no particular expertise on these matters (probably the main reason why I have not blogged about them before). And I have even less influence. I certainly don’t have anything ‘new’ to say that would add to what’s already been said by others. But as the barrister Allison Bailey noted recently, in the wake of trans activists slandering the world’s favourite author, JK Rowling, by publicly suggesting she is a sexual predator and child abuser:

For those of you on the sidelines, your silence will not protect you (but it will shame you). Speak up & stand with us.

So what follows is simply what I think are the basic, science-based facts that should be the starting point of the debate that we so clearly need to have. As I see it, we can agree on these facts, and then start to look for sustainable policy solutions to the evident conflict between the rights of women, and the rights of transwomen (men don’t appear to be too troubled one way or the other by the activities or rights of transmen). Or we can deny these facts, and continue to go nowhere fast (just ever more toxically).

Fact 1: Human biological sex is real, and matters. And, while biologically complex, it is binary: it is not a spectrum, and there are only two human sexesnot six (or ten). In the words of the blogger Andrew R (@excelpope): “obviously there is a huge amount of biological complexity here, which makes it easy to obfuscate the issue, but fundamentally, if you want a baby you need one person from each sex. You can talk about gametes, chromosomes and DNA until the cows come home, but if you start with two people from the same sex you will still never get a baby.”

OK, you’re not interested in making a baby, especially with me. (That’s fine, by the way – I’ve already fathered two more babies than I originally intended). But, were it not for biological sex, none of us would be here to have this debate.

So, sex is not “an ideological concept designed to exclude trans people from spaces”, and is generally observed and recorded, not assigned, at birth. If you disagree with this, then presumably you can explain how the sex of baby elephants is assigned when there are no elephant doctors to do the assigning. And, if you insist that we are very different to elephants – yet somehow similar to clownfish or that lone Komodo dragon in Chester Zoo – then try chimpanzees, with whom we share 98.8% of our DNA. There are no chimp doctors, either.

Not unrelated to the baby-making thing, sex is the basis for a great deal of oppression, violence and discrimination. Male humans (boys and men) tend to expect to be able to do and get whatever they want, even if that means disadvantage or even violence to female humans (girls and women). It’s the patriarchy, stupid. Or, as someone else has said, “empirically, penises have done bad”.

Yeah, I know, #NotAllPenises.

Fact 2: The existence of (very rare) Differences of Sex Development (DSDs) – some diagnosed at birth (about 0.02% of newborns are diagnosed with a DSD), but others only in later life – and of intersex people is entirely consistent with sex being binary. It is not evidence of sex being a spectrum. As the developmental biologist Dr Emma Hilton says,“DSDs are variations of anatomy, not variations of sex”. And no, intersex people are not as common as people with red hair, whatever Amnesty International says.

Fact 3: Along with other mammals, humans cannot change their sex. They can change the appearance of their sex, through surgery and/or the taking of hormones. However, most of those who identify as transwomen are, and evidently intend to stay, male-bodied. Indeed, not a few seem inordinately proud of their ‘girl dick’. But putting some glitter in your beard as you trawl the internet for PIV sex (look it up) does not make you a lesbian. Not to beat about the bush (no pun intended), but only a man could genuinely think it does.

(That ‘genuinely’ is important, btw, as it is clear there is an awful lot of groupthink going on in this debate – TWAW, and Line 3 is definitely the same length as the line on the left, even though everyone can see it is shorter.)

Whatever, a modern, liberal society should accept and make appropriate legal provision for those who do change the appearance of their sex, as well as for those who simply believe that they have changed their sex by putting on lipstick, just as it should for those who are gay, lesbian, disabled, or female, and those who believe that there is an invisible, bearded guy living in the sky who created Earth in seven days. But the fact that some simpler species such as clownfish can change sex (in one direction only, as it happens), and that (female) Komodo dragons can produce offspring by parthenogenesis, adds absolutely nothing to this debate.

[Update, 18 November 2021: Since publishing this post in July 2020, I have resisted the temptation to add updates, as apart from anything else that would be a Sisyphean task. But, today, asked by BBC Radio 4 Woman’s Hour presenter Emma Barnett whether humans can change sex, Stonewall’s high priestess Nancy Kelly, said “no”.  Which is pretty definitive.]

Fact 4: Despite the words often being used interchangeably, gender is not the same as sex. As to what gender is, there are any number of theories, but one is that it is a combination of (a) our own innate perception of being male or female (our ‘gender identity’), and (b) societal expectations of how we should look and behave, based on our sex (our ‘gender role’, or just ‘gender’). However, there is no scientific consensus that (a) even exists, outside the imagination of gender ideologists (who seem to me to be making it up as they go along). And (b) is simply a social construct, which therefore varies from region to region, and changes over time.

Or maybe gender is something else. As Andrew R (@excelpope) has suggested – possibly in jest – maybe gender was invented by bureaucrats in the 1960s to stop men answering “Yes please!” to the sex question on forms. But whatever gender is, it is not the same as sex, and sex is what matters. Women have been systematically discriminated against, raped and murdered by men for thousands of years because of their sex, not because of any ‘innate sense of their gender identity’ that they may or may not have. Put simply, if sex doesn’t matter, then nor do sexism and misogyny.

Of course, gender roles are problematic, as historically much if not all of the ‘social construct’ was constructed (mostly by men) to reinforce the sex-based roles of men and women (and of boys and girls), and so sustain the patriarchy. Modern societies have made much progress in breaking down the most harmful aspects of these gender stereotypes (and especially their coercive imposition), but they persist and indeed remain attractive, to a greater or lesser degree, to a great many people. And, generally speaking, that’s OK, even if it sometimes feels to me as if we’ve still not escaped the sad sexism and malevolent misogyny of the 1970s (when I had the misfortune to grow up).

Similarly, it’s OK, if you have a beard and a penis, to believe that you are woman, and that you are single-handedly broadening the bandwidth of ‘woman’ to include people with a beard and a penis who like to tinker with car engines. You just can’t expect anyone outside your narcissistic cult to share your belief, let alone expect the law to compel them to do so. In any case, maybe your energy would be better spent trying to broaden the definition of ‘man’ to include people with a beard and a penis who like to wear skirts, lipstick and a lot of bangles. That would seem to me to be a less scientifically-challenged endeavour.

Fact 5: Transwomen are not women, and transmen are not men. They cannot be, because humans cannot change sex (see Fact 3). They are transwomen, and transmen (even if they have had surgery and/or taken hormones to change the appearance of their sex). And there’s absolutely nothing ‘wrong’ with being a transwoman or transman.

Which means a modern, liberal society should accept and make appropriate legal and other provision for the specific needs of transwomen and transmen, to ensure they can live their lives free from discrimination and abuse. As already noted, we accept and make appropriate legal and other provision for people who believe that some invisible guy who lives in the sky created the Earth in seven days, and will stop us getting cancer as long as we go to church and sing a few songs every Sunday. So, we can do the same for men who believe that they are a woman, and vice versa.

To take a mundane but important example, in workplaces and other public spaces, transwomen and transmen should not have to use communal, single sex toilet, shower or changing facilities in which they might feel uncomfortable or unsafe. But that does not mean all such communal single sex facilities should be redesignated as gender-neutral. It simply means there should always be adequate provision of gender-neutral (or single user) facilities, in addition to single sex communal facilities for women and men.

Many businesses and organisations have ticked the ‘Stonewall Law’ box simply by spending £15 on changing the signs on the doors of their single sex facilities. But – doh! – women and girls can’t use urinals. And why should women and girls have to use communal, gender-neutral facilities in which they might feel uncomfortable or unsafe? Why should the feelings of a numerically tiny group of mostly male-bodied and male-socialised people trump those of 51% of the population? As lawyer Naomi Cunningham says on the Legal Feminist blog:

What some male commentators on this subject fail to grasp is what a rigorous training in fear women receive from an early age. We are taught that men are a source of danger. We are told it is our responsibility to keep ourselves safe from the ever-present risk of male violence. We learn to limit our freedoms. We try not to be out alone late at night. We learn to be alert to the possibility of being followed; not to make eye contact; to shut down drunken attempts to chat us up without provoking male rage; to walk in the middle of the road so that it’s harder to ambush us from the shadows; to conduct a lightning risk assessment of every other passenger on the night bus; to clutch our keys in one hand in case we need a weapon; to carry a pepper spray, or a personal alarm.

We are systematically trained in fear.

And then we are told that we must lay aside the fears we have obediently learned at a moment’s notice if a person with a male body asserts a female identity. Well, fear doesn’t work like that.

Sure, it will cost businesses and organisations more than £15 to ensure adequate provision of gender-neutral or single user facilities, alongside communal single sex facilities, to provide for the needs of the less than 1% of the population that identifies as trans. But doing the right thing is rarely the cheapest option.

Similarly, male-bodied transwomen should not be incarcerated alongside female prisoners, and transwomen should not be playing in women’s sport: it’s potentially dangerous to their female opponents, in contact sports such as rugby, but more importantly it’s unfair to the women left out of the teams/crews or denied a place on the medal rostrum.

There’s a simple reason why you hear about transwomen playing in women’s rugby teams, for example, but never about transmen playing in men’s rugby teams. It’s the very reason we have ‘women’s sport’. As sports scientist Ross Tucker explains, if we didn’t, “the champion in every single event would be male. In fact, the top 3,000 (at least) would be. That’s not how it’s meant to be.”

Oh, and men do not get pregnant – if they did, the world would look very different, and we almost certainly wouldn’t be having this debate. Some transmen get pregnant, but only if (and because) they have retained the necessary (i.e. female) reproductive organs.

Finally, if you believe that TWAW because ‘some people are born in the wrong body’, you should maybe read this 20-year-old article. A long and disturbing read, it describes the phenomenon of people who hack off their own (perfectly healthy) limbs – or persuade a surgeon to do so somewhat less violently – because “I have always felt I should be an amputee” or “I have a desire to be myself, as I ‘know’ or ‘feel’ myself to be.” This once extremely rare ‘identity disorder’, apotemnophilia, has become vastly more common since – you guessed it – the invention of the internet, where hundreds of apotemnophiles have now formed online communities, in which they share images of amputees (including amputee porn), affirm each other’s beliefs and desires, and discuss how best to procure a surgical amputation. Some apotemnophiles trace the onset of their absolute belief that they should have fewer than the four limbs they were born with back to when they were a young child. Sound familiar?

Fact 6: Er … there is no Fact 6. To my mind, five simple, science-based facts are all you need to start working on solutions. It’s not actually necessary to delve into “the cis privilege of white, middle-class feminists” (to quote one white, middle-class and ostensibly feminist former colleague of mine with whom I strongly disagreed on this issue), acquire a detailed knowledge of 17-beta-hydroxysteroid dehydrogenase deficiency, or speculate about the prevalence of autogynephilia and ‘Pornhub culture’ among transwomen. Except that, as journalist Jo Bartosch was one of the first to point out, the latter might actually be highly relevant – even central – to what’s going on:

In this era of apparent sexual freedom, the suggestion that sexual arousal might be the reason behind the rising numbers of people ‘coming out’ as transgender is still strictly verboten. Perhaps I’m a cynic, but to my mind kink is a more convincing explanation than the trapped female ‘souls’ that Layla Moran MP claims to be able to see.

But acknowledging the possible sexual driver for many of those who transition is directly at odds with the mainstream media narrative. Transgender women are almost always portrayed as victims, with late-transitioning white computer programmers in the Home Counties weaponising the deaths of Brazilian transsexuals to bolster their standing in the oppression stakes. This insistence of vulnerability plays into a sexist stereotype of femininity, and in my opinion is part of the fetish.

A case in point: self-styled ‘defender of extreme pornography’ and transgender activist Jane Fae has claimed that trans women are at risk from the likes of the allegedly ‘transphobic’ veteran broadcaster Jenni Murray. This is ludicrous. It is, after all, men who most often kill trans women.

Whatever, there’s certainly no need to start calling women ‘womxn’ or ‘menstruators’. As the Australian academic Petra Bueskens wrote in the wake of the furore over JK Rowling daring to suggest that transwomen are not women and that ‘woman’ is “not a pink brain, a liking for Jimmy Choos or any of the other sexist ideas now somehow touted as progressive”:

When Daniel Radcliffe repeats the nonsensical chant trans women are women, he’s not developing an argument, he’s reciting a mantra. Trans women are women is not an engaged reply. It is a mere arrangement of words, which presupposes a faith that cannot be questioned. To question it, we are told, causes harm—an assertion that transforms discussion into a thought crime. If questioning this orthodoxy is tantamount to abuse, then feminists and other dissenters have been gaslit out of the discussion before they can even enter it.

This is especially pernicious because feminists in the West have been fighting patriarchy for several hundred years, and we do not intend our cause to be derailed at the eleventh hour by an infinitesimal number of natal males, who have decided that they are women. Now, we are told, trans women are women, but natal females are menstruators. I can’t imagine what the suffragists would have made of this patently absurd turn of events.

If we are prepared to spend (quite a bit) more than £15.00, we can change society’s infrastructure (and laws) to meet the needs of the relatively small number of trans people, just as we have made some progress in doing so for, say, the much larger number of disabled people. When I was a kid, accessible facilities for people with a disability were practically unheard of, as were (gender-neutral) baby-changing facilities. Now, they are commonplace.

And before you shout “But disabled people are still discriminated against!”, I know they are (not least because my son is disabled). As are black and ethnic minority people, and women. So maybe Fact 6 is that, whatever changes we make to society’s infrastructure and laws, trans people will, sadly, continue to face a degree of discrimination and unfair treatment. Maybe eventually we’ll get to nirvana, but we’re not there yet.

This means that some trans people will have to assert their rights by, for example, bringing employment tribunal claims, just as all too many disabled and BAME people have to assert their rights at work by bringing employment tribunal claims for disability and race discrimination, and very large numbers of women have to assert theirs by bringing claims for sex or pregnancy/maternity discrimination, or unequal pay. Unfortunately, there is no magic, pink and powder blue-striped policy wand that government ministers can wave to make life trouble-free for everyone. For many people, life will sometimes involve serious struggles.

In my experience, women tend to understand this unfortunate ‘fact of life’, even if many activist transwomen (and their equally vocal male ‘allies’) appear not to. I refer you to Facts 1 and 3, above.

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ET claims: no sign of the end of garbage press reports

Previously on this blog, I have noted that this year sees the 50th anniversary of the passing of the Equal Pay Act 1970. And I suppose it was only to be expected that one or more law firms would use such a milestone to try and drum up some business, by getting their name in the paper as experts in defending employers against equal pay claims.

So, step forward the global behemoth DLA Piper, whose public relations people secured a nice little piece in Monday’s Guardian. Under the headline “29,000 claims a year despite 50 years since Equal Pay Act”, this reveals that:

A consistently high number of workers are alleging that their employers are illegally paying them less than colleagues in similar roles, according to research [sic] released to mark the 50th anniversary of the Equal Pay Act.

The act, which established the legal principle that workers should receive equal pay for equal work [as equal pay lawyer Stefan Cross QC points out, that’s not quite right, but hey], was given royal assent on 29 May 1970.

However, 50 years on, the number of cases [they are claims, not cases, but hey] brought to employment tribunals are showing no sign of decreasing, according to research [sic] by the law firm DLA Piper.

Since the 2007-08 financial year, employment tribunals in England and Wales have received more than 368,000 complaints relating to equal pay, an average of almost 29,000 complaints a year.

Yes, the regular reader(s) of this blog – Hi @Wonklifebalance! – will recognise this as yet another classic of its kind: the old ‘Get Our Law Firm’s Name in The Papers in The Hope of Drumming-up Some Much-needed Business by Issuing a Press Release With an Eye-catching But Rubbish Story About ET Claim Numbers’ trick.

This involves your PR people finding a willing journalist who probably isn’t even aware that the HM Courts & Tribunals Service (HMCTS) publish detailed sets of ET claim statistics every quarter, then presenting them with your ‘research’ – which is in fact no more than a couple of autosums you’ve done in one of the HMCTS spreadsheets – on some topical employment law subject, and Bob’s your uncle! Your law firm’s name is in the paper, and employers can read how you are just the legal hotshots to go to should they face a no doubt wholly unfounded employment tribunal claim, or indeed if they just want to pay for your advice on how to avoid such a claim. Because the claim numbers are “consistently high”.

You probably think that most journalists are too smart to fall for this kind of PR trickery, but you’d be surprised. It’s an old trick, yet it works again, and again, and again. Most recently on this blog, we’ve seen it work for the law firms Fox & Partners (disability discrimination claims and mental health) and GQ Littler (sex discrimination claims and the #MeToo movement, then pregnancy discrimination claims and the #MeToo movement, and then ET waiting times.)

Anyway, back to equal pay. Have there been “more than 368,000” such claims since 2007/08? Well, yes. According to the freely-available HMCTS statistics, there were 375,225 equal pay claims between April 2007 and March 2020 (including my projection for the period January – March 2020, as the statistics for that quarter are not published until next month). Which, over the 13-year period, is an average of 28,863 claims per year.

However, as the following chart shows, those headline figures do not tell the whole story. Moreover, the assertion that equal pay claim numbers “show no sign of decreasing” is what we policy analysts call ‘utter bollox’.

Yes, what DLA Piper’s legal eagle – but statistical sparrow – Jane Hannon refers to as “the consistently high number of [equal pay ET] claims” is, well, not terribly consistent. So inconsistent is it, in fact, that the average annual number of claims in the first five years, on the left of the above chart – 42,043 – is almost twice that in the most recent five years, on the right of the chart: 22,909. And, just over the last two years, claims have fallen by 33% from the post-ET fees spike. Yet Jane Hannon sees ‘no sign [of the numbers] decreasing’. Maybe she should have gone to Specsavers.

But ‘the number of equal pay claims fell in ten of the last twelve years, and is now half what it was 13 years ago’ is not the message that DLA Piper want to get across to all the employers who might read their friendly journo’s article in the Guardian. No, they want those employers to be so worried about where that next equal pay claim might be coming from that they make a mental note of the name DLA Piper. You know, just in case. Or even get them in to provide some precautionary advice (for a fee). Because the claim numbers are ‘consistently high’.

Of course, none of this was in the minds of the steady stream of leftie employment lawyers and feminist activists who happily tweeted out the Guardian article on Monday. Fifty years of the Equal Pay Act, and still no sign of claim numbers decreasing! Yeah, we all know that. It’s an outrage, and a damning indictment of decades of misogynistic Tory misrule. Or something. Tweet sent! Extend gender pay gap reporting now!

But I’m not really sure that DLA Piper are as keen as all those happy tweeters (and me) to see the end of the scandal of unequal pay, after half a century of the Equal Pay Act. Not when they charge up to £200,000 (plus barrister fees) a time just to defend employers against unfair dismissal claims. Which tend to be shorter lived (and less complex) than equal pay claims.

No, at those rates, I suspect DLA Piper would not be completely devastated to see unequal pay claims continue for another 50 years.

Posted in Equality, Justice, Workers' rights | Tagged , | 1 Comment

Dominic’s cumming home

He’s cumming home, He’s cumming home, Dominic’s cumming home.

But which home? On what date? And by what means of transport?

These and many other questions remain unanswered, 24 hours after 14 out of 26 Cabinet ministers took to Twitter to express their outrage at the politically-motivated attacks on a senior political adviser just doing what any good person would do to look after their toddler. Even though the guidance said any good person shouldn’t do that.

However, it is possible to piece together approximate answers to at least some of these questions, using publicly-available information, such as the published account of the events by Dominic Cummings’s wife, Mary Wakefield.

From these information sources, it is pretty clear that Mary Wakefield developed coronavirus symptoms – including “a nasty headache” – on Friday 27 March, the same day that the Prime Minister tested positive for coronavirus and began to self-isolate in Downing Street. Luckily for Mary, her “extremely kind” husband, Dominic Cummings, “rushed home from work” to look after her. And, indeed, Dominic Cummings was filmed running out of Downing Street, carrying a large and seemingly heavy bag, towards the end of the day on Friday 27 March.

According to Mary, the extremely kind Dominic himself collapsed with coronavirus symptoms just 24 hours later, and “for the next 10 days he lay doggo with a high fever and spasms that made the muscles lump and twitch in his legs”. And, indeed, by Monday, Downing Street sources were confirming to journalists that Dominic had developed “mild” coronavirus symptoms – including a cough – over the weekend, and was now self-isolating. By this time, we now know, both Dominic and Mary, and their toddler, were in Durham.

So it seems pretty certain that Dominic, Mary, the toddler and their coronavirus travelled from their home in Islington, north London, in breach of the law, to the evidently quite extensive home of Dominic’s parents in Durham, late on Friday 27 March, or early the next day (so, possibly in the middle of the night). Whether they drove, flew or took a train (see below), we don’t yet know. But starting on Saturday 28 March, or possibly on Sunday 29 March, poor Dominic spent 10 days in his Durham bed, lying “doggo”.

Then again, Dominic was evidently well enough to read and retweet tweets on Saturday 28 and Sunday 29 March; to read and reply to tweets on Monday 30 March, when he tweeted “train” in reply to those asking why he had needed to run out of Downing Street on 27 March; to retweet a press article on Tuesday 31 March; to retweet the Prime Minister’s thanks to “everyone who is doing their bit in the fight against coronavirus” on Thursday 2 April; and to retweet the PM on Saturday 4 April. Maybe not so “doggo”, then.

What “train” was Dominic running for late on Friday 27 April, I wonder? A ‘train’ from Westminster to Islington? Most of us would call that a ‘tube’. Or a train from London to Durham? Maybe we should be told.

 

 

 

 

If the lucky Mary’s account is to be believed, Saint Dominic then rose from his sick bed on Tuesday 7 April or (if his doggo-ness started on Sunday 29 March) on Wednesday 8 April. However, according to the Guardian and Daily Mirror, Dominic was seen, with the toddler, in the garden of his Durham home on Sunday 5 April. They may or may not have been dancing to ABBA. Maybe Dominic was only a little bit “doggo” by then.

Similarly, if Mary developed her symptoms on Friday 27 March, the day that Dominic does seem to have rushed (a) for a train and (b) home to look after Mary, then Dominic’s 14 days of self-isolation (as required by the Government’s coronavirus guidance) would have ended on Friday 10 April. So, he was out of self-isolation on Sunday 12 April (Easter Sunday, and Mary Wakefield’s birthday) when, according to the Guardian and Sunday Mirror, he and Mary made the 60-mile round trip from their Durham home to Barnard Castle, in breach of the Government’s then guidance to ‘stay at home, save lives’.

And, on Tuesday 14 April, Dominic was photographed back at work in Downing Street, clutching “a bag containing a carton of soup, a tangerine and a carrot”.

Subsequently, Dominic and Mary may or may not have returned to Durham, where – according to the Guardian and Sunday Mirror – they were seen walking among bluebells on Sunday 19 April, in full compliance with the Government’s then guidance not to “leave your home for any reason, other than to walk among bluebells”.

Bluebells, shmuebells. The key questions, it seems to me, are: on what date (at the end of March) did Dominic, Mary and the toddler travel unlawfully from London to Durham, and how did they get there? Did they travel by train and/or other public transport? If so, how many people did they interact with (and possibly infect), given that they should by then have been self-isolating?

Or did they unlawfully drive the 265 miles from north London to Durham? In which case, did they stop for petrol? Was this the first known case of a toddler spending four hours or more in a car without needing to go to the toilet? And, if they did stop en route, who got out of the car, and how many people did they interact with (and possibly infect), given that they should by then have been self-isolating?

FWIW, my working theory is that Johnson can’t sack Cummings, because then it would only be a matter of time before it comes out that Johnson sanctioned the road trip to Durham. It is inconceivable that the Prime Minister’s closest adviser would go to the far end of the country without at least telling the Prime Minister. And, if Cummings has to go for making the unlawful road trip, Johnson would have to go for sanctioning it. So, they have no option but to try to ride it out. They sink or swim together.

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Shared Parental Leave: No need for candles

Until it got wiped out by the Covid19 pandemic, this year was a busy one for #ukemplaw anniversaries. And many of them are (or, at least, were) a cause for celebration: the Equal Pay Act 1970 is 50 years old this year, and the Equality Act 2010 is ten years old. Light those candles on your cake. But please do comply with social distancing rules.

However, there was another anniversary this year that is less a cause for joyous celebration, than a timely opportunity for reflection on whether we are on the right path. For 5 April 2020 was the fifth anniversary of the coming into force of the right to Shared Parental Leave, created by the Conservative and Liberal Democrat Coalition Government under Part 7 of their Children and Families Act 2014.

Since 5 April 2015, while new mothers are still legally required to take the first two weeks of maternity leave, they can then cut their maternity leave short, exchange if for Shared Parental Leave, and then share up to 50 weeks of that leave (up to 37 weeks of it paid) with the father or other parent. Well done, Jo Swinson.

At the time, the TUC and others warned that many new parents would not even qualify for the new right, leaving many new fathers with no statutory right to time off work in the year following the birth of their child, other than two weeks of paternity leave. And employers fretted about the sheer complexity of the new Regulations.

Sadly, those warnings and concerns have proven to be well-founded. As the journalist Alexandra Topping noted recently in the Guardian:

“Only around three in seven families are eligible (agency workers and those on zero hours contracts are excluded), and of those only about 1% have shared any leave at all. By any reckoning it is, according to Adrienne Burgess of the Fatherhood Institute, ‘an inequitable and failed policy’.”

In fact, robust data on take-up of Shared Parental Leave is pretty much non-existent, with the TUC basing its “just over 1%” figure, regularly cited by journalists, on an estimate published in early 2019 by the University of Birmingham, which in turn seems to have lifted it from a 2018 guesstimate by an employment law firm seeking to drum up business.

One key problem is that no one knows exactly how many new fathers are eligible for Shared Parental Leave. But we do know the number is most likely in excess of 250,000 (there were 660,000 births in 2018, and in 2013 the Coalition Government suggested there would be some 285,000 eligible fathers each year).

And we know, from various Freedom of Information requests to HMRC, that only 8,500 fathers received shared parental pay in 2018/19. So, five years after implementation, few believe that take-up of Shared Parental Leave has reached much beyond the lower end of the Coalition Government’s somewhat gloomy 2013 prediction of 2-8% of eligible fathers (or about 1-4% of all new fathers).

That is simply not good enough, if the aim is to tackle the widespread pregnancy and maternity discrimination in our workplaces, and the Gender Pay Gap, by enabling a societal shift towards more equal parenting. And five years is long enough to tell us that we cannot expect much more from Shared Parental Leave. As Alexandra Topping concludes:

“We have to overhaul parenting policy and parenting culture in this country, and we have to start now.”

The good news is that five years’ experience of Shared Parental Leave confirms the lessons we could and should have learnt from the impact of parental leave policies in other countries. In short, the most successful approaches in other countries – such as those in Sweden, Norway and Iceland – are based on individual, non-transferable rights for both the mother and the father, and on all leave being moderately well paid.

Which does not mean mothers and fathers have to have identical rights to leave in the first year of their child’s life: fathers do not play an equal part in the biological and physical endeavours of pregnancy, childbirth and breastfeeding. But we do need to greatly enhance new fathers’ right to paid parental leave, while protecting mothers’ existing rights to paid leave in late pregnancy and to recover from the often considerable physical and/or mental impact of pregnancy and childbirth.

In recent years, a (very) small number of employers such as the drinks conglomerate Diageo, the insurance provider Aviva, and the finance company Investec have justly garnered approving press coverage for introducing contractual rights to six months of parental leave, on full pay, for both new mothers and fathers. But their experience tends to confirm that such equal entitlements to well paid leave do not, by themselves, lead magically to equal parenting: at Aviva, mothers still take an average of 311 days of parental leave, while fathers take an average of only 158 days (i.e. not even their full contractual entitlement to six months’ leave on full pay).

In any case, while such supposedly equitable schemes might work well for large and highly profitable companies, it is simply fanciful to think that any government would move from our existing system of grossly underpaid maternity, paternity and shared parental leave to one that includes six months of statutory parental leave on full pay for each parent. The role of the statutory system will always be to provide a minimum level of provision that meets the basic needs of pregnant women and new parents. And, in the first year, women have greater needs than men. Really, it’s true. I’ve had two kids. So I know.

This is partly why the fab feminists at Maternity Action have proposed a simple, 6+6+6 model of statutory leave, to replace the chronically failing Shared Parental Leave: six months of maternity leave reserved for the mother, and six months of non-transferable (‘use it or lose it’) parental leave for each parent. This parental leave could be taken together or separately, giving a combined maximum of up to 18 months, if all leave is taken consecutively. Plus, as now, all new fathers (and adoptive co-parents) would get two weeks of paternity leave, available to be taken at or near the time of birth.

At least as important as fathers’ statutory entitlement to parental leave, however, is the rate at which it is paid. The currently, ludicrously-low rate of statutory maternity, paternity and shared parental pay – £151.20 per week – equates to just 49% of the national minimum wage (for someone aged 25 or over, working a 35-hour week), and to only 40% of the Living Wage Foundation’s living wage (outside London), which is independently-calculated as the minimum that people need to get by. Maternity Action suggest that, at the very least, this standard rate should be doubled, to £300 per week. And, in the longer run, it surely needs to go higher still.

Finally, as the experience of Aviva demonstrates, as much as we need to ditch Shared Parental Leave and replace it with a simpler, more equitable statutory system based on individual, non-transferable rights to leave and pay, such reform will fail to deliver equal parenting unless it is accompanied by robust action to increase the supply of good quality, affordable childcare, a shift to a ‘flexible by default’ approach to job design and recruitment, and a major effort by political and business leaders to drive a change in parenting culture.

How about we make sure that, five, ten or 50 years from now, we do have something to celebrate when talking about equal parenting? Once the Covid19 pandemic and lockdown is over, let’s not go back to the bad old normal.

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Latest ET claim stats: onwards and upwards

Once again, there is some good news this morning for any underemployed employment lawyers, with the latest set of quarterly employment tribunal (ET) statistics, covering the period October to December 2019 (Q3 of 2019/20), showing yet another small increase in the number of single ET claims/cases.

In Q3, there were 10,887 new single claims/cases, up from 10,307 in the previous quarter (after allowing for the 1,700 single claims/cases that the Ministry of Injustice still says, in its commentary on the statistics, “will be reclassified as multiple claims once fully vetted”). This represents a 25% increase on the same period a year ago, and – as the following chart shows – the current trend is slowly but steadily upwards.

The number of disposals of single claims/cases also increased, to 7,098, up from 6,036 in Q2, and 5,610 in Q1. Which may mean the 58 additional ET judges recruited in April last year are having an impact. However, the Ministry notes that, at 33,000, the “caseload outstanding [i.e. single claims/cases + multiple claimant cases] has almost reached the peak levels seen in 2009/10 (when it was 36,000 in both Q2 and Q3 of that year)”. And the mean age on disposal of single claims/cases has continued to rise, to 36 weeks (six weeks more than in the same quarter a year ago). As the following chart shows, this has now risen steadily since late 2017.

So, no wonder that, earlier this week, I heard someone describe the ET system as “creaking at the seams”.

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It’s a shame about BEIS

So, just like James Bond, naming & shaming of employers who breach the national minimum/living wage is back. Well, almost back. Having been suspended since the last round of naming & shaming in July 2018, pending the outcome of a ministerial review, the scheme will resume shortly, according to the Minister’s answer to a written Parliamentary Question on 23 January, and a report in the Financial Times on 11 February.

And, with the outcome of the ministerial review having now been published (see pp 18-23), the only remaining question is whether the next round of naming & shaming will come before the UK release of No Time To Die on 3 April. Except … well, the ministerial review has resulted in a few changes to the scheme, and the TUC, for one, is not happy. In its Valentine’s Day card to BEIS, the TUC notes that:

A controversial change to the rules means the minimum arrears threshold for naming and shaming will rise from £100 to £500. If this threshold had been in place under the old rules, it would have excluded about a quarter of cases.

Going forward, it will mean employers who deliberately try to shave relatively small amounts off minimum wage pay stay under the radar. Think cafes and bars demanding unpaid trial shifts, or home care providers who do not pay for travel between clients, for example.

The new threshold is simply too high – ministers must think again.

In fact, if the new £500 threshold had been in place for the last three rounds of naming & shaming – in December 2017, March 2018 and July 2018 – it would have excluded 218 (32%) of the total of 678 employers named. However, between them, those 218 employers accounted for just £60,352.55 (1.4%) of the total of £4.3 million of arrears owed by the 678 employers named, and just 778 (1.6%) of the total of 47,967 workers involved.

The lists of named & shamed employers published by BEIS have always had a long tail of relatively minor offenders. And it is a moot point whether the naming & shaming of such relative small fry – in addition to them having to pay the arrears owed plus a financial penalty – actually achieves very much, in terms of overall deterrence.

Then again, those who would have escaped being named & shamed in the last three rounds include the Wolverhampton Wanderers football club (which owed a total of £450.79 to 17 workers), the Derbyshire County cricket club (which owed £225.16 to one worker), and the London Irish rugby union club (which owed £131.73 to one worker). So it’s not true to say that none of the ‘small fry’ are household names, and the TUC is right to highlight that the naming & shaming scheme will now be even less transparent that it was.

However, in my view, the raising of the threshold from £100 to £500 pales into insignificance when set against the fact that, as previously noted on this blog, large employers who ‘self-correct’ sometimes substantial sums of arrears when challenged by HMRC already get away with not being named & shamed for those ‘self-corrected’ arrears (even if they are named & shamed in respect of smaller sums of HMRC-enforced arrears).

Having been quietly introduced by BEIS and HMRC in 2015, and never formally announced, such self-correction by employers now accounts for almost half of the arrears identified, directly or indirectly, by HMRC enforcement of the minimum wage.

Over the three-year period 2015/16 to 2017/18, no less than £16.5 million (45%) of the total of £36.8 million of arrears identified through HMRC enforcement was identified through such ‘self-correction’ (see chart below, sourced from Figure 9 on page 29 of the Low Pay Commission’s April 2019 report, Non-compliance & enforcement of the National Minimum Wage).

Yet not a single employer has been named & shamed in respect of that £16.5 million of arrears, and not a penny has been imposed in financial penalties. Which means those employers have evaded (and the Government has kissed goodbye to) up to £33 million worth of financial penalties (the current penalty rate is 200% of the arrears owed). That’s more than the current annual budget for enforcement of the minimum wage.

Strangely, the TUC doesn’t appear to be the least bit concerned about this, as the issue is not even mentioned in its complaint about the new £500 threshold. But, as I have asked previously on this blog, is it fair that the very worst offenders are thus able to minimise both their ‘shame’ and the sum of penalties imposed? Do the public not deserve to know the full extent of an employer’s disregard of the law? As things stand, we do not know the name of a single employer involved in cheating their workers of that £16.5 million.

“I’ve never been too good with names,” sang Evan Dando and The Lemonheads on the title track of their fifth album It’s a shame about Ray in 1992. Someone at BEIS should have a listen. Because not only does their naming & shaming scheme lack transparency – essential to the very purpose of the scheme – but it is not even being applied to the biggest and worst offenders.

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New Year, new enforcement body?

So, Boris Johnson held and won the general election that, back in August, I predicted he might well hold and win on the back of a ‘deal’ with the EU27 that, at that time, most commentators thought less likely than a disastrous ‘no deal’ exit on 31 October. Sadly, the People’s Vote campaign is dead and buried alongside the political careers of some of its leading advocates. And the second Queen’s Speech in as many months is not simply more substantive than the first, but is brimming with Bills good, bad and ugly.

In short, life goes on – for policy wonks at least. And chief among the Queen’s Speech bills, for this policy wonk, is an Employment Bill that, according to the Government’s somewhat sketchy background briefing notes, promises:

●  Creating a new, single enforcement body, offering greater protections for workers.

●  Ensuring that tips left for workers go to them in full.

●  Introducing a new right for all workers to request a more predictable contract.

●  Extending redundancy protections to prevent pregnancy and maternity discrimination.

●  Allowing parents to take extended leave for neonatal care; and introducing an entitlement to one week’s leave for unpaid carers.

●  Subject to consultation, the Bill will make flexible working the default unless employers have good reason not to.

As noted previously on this blog, the proposal to create a new, single enforcement body not only has a long history featuring yours truly, but also appeared in the election manifestos of both Labour and the Liberal Democrats. Whether these near-identical (albeit somewhat vague) manifesto commitments will translate into cross-party parliamentary support for this element of the Bill remains to be seen, not least as the TUC and major trade unions such as Unite remain (unreasonably) hostile to the idea.

However, with organisations such as Acas and the Law Society welcoming the proposal in their responses to the BEIS consultation that closed in October, it may well be that a Fair Employment Agency is now a real possibility. Which is (probably) good news. For, as Acas notes in its response to the consultation, the potential benefits of such a single enforcement body include

“raising the visibility of enforcement options overall, as well as bringing greater clarity for both workers and employers. Having a single agency instead of three could make it more straightforward to signpost both workers and employers and raise their awareness of where to seek help and advice. This is particularly important for reaching high risk sectors and the more vulnerable workers in society, many of whom are likely to have limited understanding of their employment rights and possibly poor English, and are thus likely to need special help. As the [BEIS] consultation document makes clear, a single agency would also allow for more coordination across the different employment rights covered by the existing bodies and provide users with a more integrated service.”

That said, such a proposal is arguably at odds with suggestions of a post-Brexit erosion (or “bonfire”) of EU-derived (and even other) employment rights, and with the Johnson government’s somewhat less than concrete commitment to a ‘level playing field’ with the EU on such matters. For the whole point of a new, single enforcement body would be to protect and strengthen that level playing field, to the benefit of both workers and employers.

Other elements of the Bill, such as making flexible working the default and the proposed neonatal leave and pay – the latter a deserved policy win for the campaign group Bliss – may well receive cross-party support, while ministers are likely to face pressure from Labour to go further than planned on redunduncy protection, and adopt the so-called German model advocated by Maternity Action and others, which was pledged in Labour’s general election manifesto. And the inclusion of such measures in the Bill might even facilitate a much-needed debate about replacing the deeply flawed and chronically unsuccessful system of Shared Parental Leave.

So, many details yet to be seen, and many important questions still to be answered. But, after three years of brain-dissolving Brexit madness and policy-making constipation, (policy) life seems set to move on. Maybe.

Happy New Year.

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New ET claim stats: don’t hold the front page

On Friday, when you were possibly too busy drowning your sorrows to notice, the Ministry of Injustice published the latest set of quarterly employment tribunal (ET) statistics, covering the period July to September 2019 (Q2 of 2019/20). And, at first glance, there seemed to be good news for underemployed employment lawyers: a stonking 23% rise in the number of single claims/cases, from 9,722 in Q1, to 12,007.

However, in its commentary on the data, the Ministry notes that this increase is largely due to “the inclusion of 1,700 [single] cases that will be reclassified as multiple claims once fully vetted”. And a quick scan of Table C3 of Annex C (ET receipts) suggests that most of these 1,700 single cases awaiting reclassification as multiple claims were lodged in Scotland in August. Removing these 1,700 cases from the data leaves the increase in single claims/cases looking somewhat less dramatic, but it is worth noting that the number of such claims/cases was nevertheless above 10,000 for the first time since Q2 of 2013/14.

Then again, it is not at all clear from the data on jurisdictional claims what is driving the relatively mild but steady upwards trend in the number of single claims/cases since Q3 of 2018/19. For, as the following table shows, in all but three of the 22 jurisdictions (including ‘Others’) identified by the Ministry of Injustice in its statistics, the year-on-year trend is either downwards (15 jurisdictions) or only marginally upwards (four jurisdictions). So, this quarter, we should at least be spared from garbage press reports about the impact of #MeToo on ET claim numbers.

Jurisdiction Jan – Sept 2018 Jan – Sept 2019 % change
Age discrimination 1979 1365 -31.0
Breach of contract 10382 10540 1.5
Disability discrimination 5025 5443 8.3
Equal Pay 24804 20268 -18.3
National Minimum Wage 311 231 -25.7
Part-time workers Regs 204 213 4.4
Public Interest Disclosure 1990 2007 0.9
Race discrimination 2617 2561 -2.1
Redundancy (inform & consult) 4817 3628 -24.7
Redundancy pay 3687 4321 17.2
Religion/belief discrimination 549 511 -6.9
Sex discrimination 7954 4670 -41.3
Sexual orientation discrimination 338 327 -3.3
Suffer detriment/UD – pregnancy 1222 1181 -3.4
TUPE 585 468 -20.0
Unauthorised deductions 17808 16306 -8.4
Unfair dismissal 16455 15024 -8.7
Working Time Directive 42680 19876 -53.4
Written pay statement 2065 490 -76.3
Written statement (dismissal) 222 224 0.9
Written statement (T&Cs) 1053 932 -11.5
Others 14455 21544 49.0
Total 161202 132130 -18.0

Finally, the Ministry’s commentary on the latest set of data confirms that the mean age at disposal of single ET claims/cases continues to creep upwards, and in Q2 was greater than in any quarter since 2014.

However, talk to almost any employment lawyer, and they will tell you that even this figure fails to reflect the long delays that they are currently experiencing in the processing of their ET cases. Which is setting off an alarm deep inside this wonk’s sleepy brain: We currently have a situation – a steadily rising number of claims (singles, at least), and a chorus of complaint (from employment lawyers) about the ET system being clogged up – that is not unlike the situation in 2011 – a steadily rising number of claims (all claims, at least – single claims/cases were actually falling, but no one yet knew), and a chorus of complaint (from employer bodies such as the CBI) about the system being clogged up – that was used by ministers to justify the proposed introduction of ET fees.

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Brexit: Never really over

(With apologies to Katy Perry)

I’m losing my self-control
Fuck, the Tories got back in
But I don’t wanna fall down the rabbit hole
Cross my heart, I can’t do it again

I tell myself, tell myself, tell myself, “Draw the line”
And I do, I do
But once in a while, I trip up, I cross the line
And I think of the EU

Three years, and just like that
My head still takes me back
To before the Referendum
But I guess it’s never really over

Oh, we’re in such a mess
Brexit isn’t the best
Boris said “get it done”
But I know it’s never really over

Just because it’s over doesn’t mean it’s really over
Boris said “get it done”, but he’ll be negotiatin’ again
And we’ll face a ‘no deal’ cliff edge all over again

Just because it’s over doesn’t mean it’s really over
We’ll never get a ‘final say’, we won’t be voting again
Now we just get to ‘do Brexit’ all over again

Thought we kissed goodbye
Thought we meant this ‘deal’ was the last
But I guess it’s never really over
Thought we drew the line
Right through EU and I
Can’t keep going back
I guess it’s never really over, hey

Three years, and just like that
My head still takes me back
To before the Referendum
But I guess it’s never really over

Just because it’s over doesn’t mean it’s really over
And even if I think it over, Brexit will be comin’ over again
And I’ll have to get over EU all over again
And I’ll have to get over EU all over again

Just because it’s over doesn’t mean it’s really over
And even if I think it over, Brexit will be comin’ over again
And I’ll have to get over EU all over again
Over EU all over again

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