So, according to the Minister’s answers to a series of Parliamentary Questions tabled by Angela Rayner, the shiny new Employment Tribunal case management system that HMCTS introduced – presumably at some expense – in March 2021 is unable to generate data on ‘average age at disposal’ (that is, how long it takes the ET system to process a case, on average). The old ET case management system used to generate such data for single claims/cases and multiple claimant cases, and until March 2021 the figures were routinely included in the quarterly tribunal statistics published by HMCTS. And every now and then I would produce a chart.
However, the figures have been absent from the quarterly tribunal statistics since March 2021 and, in his answers of 28 February and 13 March to the PQs tabled by Angela Rayner, justice minister Mike Freer has confirmed that this is because such ‘average age at disposal’ data is not available from the new case management system. Which, given what we know about the growth in the backlog of ET cases since March 2021, may be less a bug than a feature, from the Minister’s point of view.
Another bug – or feature – in the new case management system is that it seems unable to generate reliable data on that backlog of ET cases. The following table shows the backlog (single cases + multiple claimant cases) at the end of each month since January 2022, as reported in each of the six monthly data sets of HMCTS management information published since October 2022.
In each of the four data sets published between 10 November 2022 and 13 February 2023, the figure for the backlog (i.e. outstanding caseload) at the end of each month since January 2022 was almost invariably revised (slightly) upwards, with the data set published on 13 February indicating that the backlog was more than 50,000 at the end of every month from September to December 2022. However, in the data set published on 9 March, every figure for the backlog has been revised (slightly) downwards, with the result that the backlog did not exceed 50,000 until January 2023.
Time will tell whether this bug – or feature – in the new ET case management system will keep the backlog of ET cases below 50,000 indefinitely, but in the meantime my chart of the backlog now looks like this:
Update, 13 April: According to the latest set of HMCTS management information, published earlier today, the backlog of ET cases was not only below 50,000 at the end of February 2023, but never actually reached 50,000, as had been indicated by the four previous sets. So, definitely more a feature than a bug.
Back in May, as we waited to see whether the Queen’s Speech would include the repeatedly promised Employment Bill, I noted on this blog that the Government had no fewer than 12 outstanding key pledges on workers’ rights, some of which had been outstanding for some time. Seven of the 12 pledges had featured in the December 2019 Conservative manifesto and, as we approach the third anniversary of that general election, now seems a good time to review what progress has been made since May.
Two of the 12 pledges – the red ones in the chart above – have been abandoned. In July, the Government announced that it will not be progressing the pledge, first made in February 2018, to legislate to improve the clarity of the ’employment status’ tests. And BEIS officials have made it very clear that, despite the establishment of an Advisory Board on Pregnancy & Maternity Discrimination in late 2021, the Government will not be producing the Action Plan to make it easier for pregnant women and new mothers to stay in work that it promised in July 2019. Which may or may not be why BEIS expelled Maternity Action from the Advisory Board after just one meeting.
As noted on this blog in October, five of the pledges – the orange ones in the chart – are currently being progressed through Government bills masquerading as Private Members’ Bills (PMBs), introduced by Labour, Liberal Democrat, SNP and Conservative backbench MPs in June. And there is enough time for most if not all of these PMBs to reach the Statute Book before the end of the current parliamentary session in April or May next year: all five have already had their Committee stage, and are set to complete their passage through the House of Commons by early February, at which point they will go to the House of Lords.
However, Ernest Hemingway warned us not to confuse movement with action. There is no guarantee that each of the PMBs will reach the Statute Book – the necessary parliamentary time remains in the gift of ministers, who could pull the plug at any point, should they decide that it would be politically advantageous to them to hold the reforms back as ready-made manifesto commitments for a May 2024 general election. There are already suggestions that, as things stand, Rishi Sunak faces the prospect of going into that general election with “precious little to say”.
Furthermore, while Stuart McDonald’s Neonatal Care (Leave and Pay) Bill would amend the Employment Rights Act 1996 and the Social Security Contributions and Benefits Act 1992 to require the Secretary of State to make Regulations creating a statutory right to paid neonatal leave, and Wendy Chamberlain’s Carer’s Leave Bill would similarly amend the Employment Rights Act 1996 to require the Secretary of State to make Regulations creating a statutory entitlement to unpaid carer’s leave, Dan Jarvis’s Redundancy Protection (Pregnancy and Family Leave) Bill would only give the Secretary of State the power to make Regulations extending the scope of the existing MAPLE Regulation 10 protections. The Secretary of State would remain free to not use that power (or to do so only at a time of his or her choosing).
Since Dan Jarvis’s PMB was introduced in June, it has emerged that Ministers are proposing to include, in the necessary Regulations, a six-week qualifying period for the protection that would be extended to new parents after their return to work from a period of leave. However, this proposal – which would set a worrying policy precedent – has not yet been publicly set out in writing, and the Minister somehow failed to mention it during both the Second Reading and the Committee stage debates.
During the latter debate, on 2 November, Dan Jarvis assured MPs that BEIS are consulting members of the above-mentioned Advisory Board – that is, the Advisory Board from which BEIS expelled Maternity Action – about this qualifying period (and the PMB’s impact assessment, published in August, wrongly implies that at least some such consultation had by then already taken place). However, it is not at all clear why such consultation, on an important point of policy, should be confined to the members of the Advisory Board, and be conducted behind closed doors. But that’s the kind of thing that happens when you’re a backbencher and you introduce a PMB that you didn’t write yourself, and over which you have no control.
A sixth Government bill masquerading as a PMB – Yasmin Qureshi’s Employment Relations (Flexible Working) Bill – would amend the Employment Rights Act 1996 to make a number of welcome but relatively minor reforms of the administrative process underpinning the existing right to request flexible working (such as allowing employees to make two flexible working requests in any 12-month period, instead of the one currently allowed). But it would not make the right to request flexible working a Day One right – as the Government proposed in its September 2021 consultation paper – let alone deliver the Government’s December 2019 manifesto pledge to make flexible working the default. It seems we have to await the Government’s response to the 2021 consultation to learn whether ministers plan to make the right to request a Day One right, and during the PMB’s Second Reading debate on 28 October the minister could say only that the Government will bring forward that response “shortly” (which may or may not be more imminent than ‘in due course’).
As for the other four outstanding pledges, they remain, well, outstanding. Evaluating the Shared Parental Leave scheme remains “an important part of the policymaking process”, according to the Minister, but it is now more than five years since the evaluation was first announced to MPs, and we are still waiting for the evaluation report. Apart from anything else, this means that the 2019 BEIS/DWP Maternity & Paternity Rights Survey – part of a series that has been conducted since the late 1970s, and which was last conducted in 2009/10 – remains under wraps, despite the survey fieldwork having been completed by November 2019. Because, for reasons known only to BEIS ministers, the Survey report cannot be published until the Shared Parental Leave evaluation report is published.
There are no signs of the Government introducing the new right to request a more predictable and stable contract that was first promised in February 2018, despite the Minister confirming as recently as late October that the Government “remains committed” to this pledge. Similarly, there are no signs of any progress on the December 2019 pledge to “make it easier for fathers to take paternity leave”. And there’s been no real news on the promised Single Enforcement Body since June 2021.
Furthermore, these are only the most significant commitments on workers’ rights that the Government has made, and which remain outstanding. For example, on 24 November, a coalition of organisations wrote to business secretary Grant Shapps, urging the Government to act on its March 2022 commitment to remove the ‘family worker exemption’ from the National Minimum Wage Regulations.
In December 2019, the Tories sought to portray themselves as the workers’ party, with a raft of broadly welcome manifesto commitments on workers’ rights. In 2024, they may well want to do so again. So watch this space.
So, with the “new era” of Liz Truss and Kwasi Kwarteng having lasted all of seven weeks, Rish! Sunak is back in Downing Street. And, shortly before being clapped through the lobby of Number 10 by the waiting officials and advisers, the shiny new Prime Minister used his first address to the nation to claim as his own the electoral mandate secured by Boris Johnson in December 2019:
The mandate my party earned in 2019 is not the sole property of any one individual, it is a mandate that belongs to and unites all of us. And the heart of that mandate is our manifesto. I will deliver on its promise.
Which, to this employment policy wonk at least, begs the question: Will Rish! Sunak deliver on the outstanding 2019 manifesto promises on workers’ rights, perhaps through an Employment Bill?
And why not? Dominic Raab is back at the Ministry of Injustice, searching through the bins for a discarded copy of his almost palindromic Bill of Rights Bill. Suella Braverman is back at the Home Office, searching for the miraculous policy that will ‘reduce net migration to tens of thousands’. And Jacob Rees-Mogg is back on the backbenches, where he belongs. So, why can’t we have the repeatedly promised Employment Bill back?
When I posed this question on Twitter earlier today, Daz Newman was quick to point out that some of those 2019 manifesto promises on workers’ rights are currently “making their way through Parliament as Government-sponsored Private Members’ Bills”. And it is indeed the case that, days after the (third) shelving of the Employment Bill in May this year – and as anticipated on this blog – the Government whips worked hard to sell a number of Government hand-out bills to some of the MPs who had just ‘won’ a top slot in the annual Private Members’ Bill (PMB) ballot. As a result, on 15 June no fewer than six Government Bills masquerading as PMBs were introduced by Labour, Liberal Democrat, SNP and Conservative backbench MPs.
The three-hour Second Reading debate of Dan Jarvis’s Redundancy Protection PMB was notable for the number of MPs who expressed support for the Bill while at the same time making it clear they much prefer the so-called German model of redundancy protection repeatedly proposed by Maternity Action, Maria Miller MP and many others since 2016, and which is the stated policy (and 2019 manifesto commitment) of Dan Jarvis’s own Labour Party. As Maternity Action noted in their briefing for MPs, Dan Jarvis’s PMB will “simply entrench a broken system that does not work and does not protect women”, while the so-called German model is – in the words of Bob Stewart MP – “flipping good”.
The Second Reading debate of Wendy Chamberlain’s Carer’s Leave PMB was somewhat shorter – under an hour – while that of Wera Hobhouse’s Worker Protection PMB was so short – a mere 20 minutes – that, apart from Ms Hobhouse, the shadow minister and the minister, only one MP got to speak. Welcome to Democracy 2022.
However, even if these Government Bills masquerading as PMBs make it as far as the Statute Book – and most stand a very good chance of doing so, now that a snap General Election seems to be out of the question – that still leaves the following 2019 manifesto promises outstanding:
Create a single enforcement body to “crack down on any employer abusing employment law”. As previously noted on this blog, in June 2021 the Government confirmed this commitment “as set out in the Government’s manifesto. The new body will not just bring together three existing bodies into a single, recognisable organisation, it will deliver a significantly expanded remit. As a result, more vulnerable workers across the country will receive money that is owed to them.” This is arguably the most significant of all the 2019 manifesto commitments on workers’ rights. But then I would say that, as the creation of a single enforcement body was my idea.
Establish a new right for workers to “request a more predictable contract and other reasonable protections”. Just this week, business minister Dean Russell confirmed to MPs that the Government “remains committed” to introducing such a right. [Update, October 2023: On 18 September, the Workers (Predictable Terms and Conditions) Act 2023 – originally a Private Members’ Bill introduced by Conservative MP Scott Benton in February 2023 – received Royal Assent, having been sped through its Commons and Lords stages with cross-party support. The Act amends the Employment Rights Act 1996 to establish a right for workers to “request more predictable terms and conditions of work”, but Darren Newman has questioned whether this new ‘right to request’ more predictable terms and conditions is worth the 4,800-word draft Acas code of practice on handling such requests. On 20 October, in answer to a written parliamentary question, business minister Kevin Hollinrake stated that the Government plans to bring the Act into force “in Autumn 2024”.]
Look at ways to make it easier for fathers to take paternity leave. As noted recently on this blog, almost three years on, there is no evidence of ministers having since done any such ‘looking’, and certainly no policy proposals have been forthcoming.
In addition, the 2019 manifesto promised a consultation on making flexible working the default and, while that consultation was undertaken in late 2021, we await the outcome and any progress towards the promised goal (Yasmin Qureshi’s Flexible Working PMB will simply make a number of welcome but relatively minor changes to the existing right to request flexible working). [Update: During the 90-minute Second Reading debate of Qureshi’s Flexible Working PMB on Friday, the Minister indicated that the Government will publish its response to the 2021 consultation “shortly” – which may or may not be more imminent than ‘in due course’. Significantly, perhaps, of the 11 MPs – other than Qureshi herself, the Minister and the shadow minister – who contributed to the debate, ten were Conservatives. It’s almost as if the PMB reaching the Statute Book matters more to the Conservatives than it does to Qureshi’s own Party.]
And then there’s the things that weren’t in the 2019 manifesto, but should (and indeed might) have been in the Employment Bill, such as reform of the chronically failing Shared Parental Leave scheme, and the extension of the Employment Tribunal time limit recommended by the Law Commission in April 2020.
So, yeah, come on Rish!, take us back to the future of December 2019!
[Update: On 28 October, during his first public outing as Prime Minister – a visit to Croydon University Hospital – Sunak the Sensible repeated his pledge to deliver “on the promise of the manifesto that we were elected on, with very strong support, in 2019”.]
“Only a third of eligible fathers taking paternity leave” (People Management)
“Just a third of eligible fathers take paternity leave” (HR News)
“Only one in three fathers take paternity leave, research suggests” (Daily Mail)
“Just a third of eligible new fathers took paternity leave in the last year” (HR Magazine)
“Only a third of eligible new fathers are taking paternity leave” (Jersey Evening Post)
If these headlines – all from July this year – feel a bit familiar to you, that’s because you have seen them before. You saw them last year, and the year before that, and the year before that. Because, as previously noted on this blog, they are all based on a press release that law firm EMW regurgitates every summer. Admittedly, EMW do throw in a bit of variation: one year it’s ‘Only one third of fathers are taking paternity leave!’, and the next year it’s ‘Two thirds of fathers are not taking paternity leave!’ Clever!
So, for example, here are the Independent and HR News in the summer of 2019, reporting that “fewer than [a] third of new fathers take paternity leave”. And here are the Telegraph and HR News in the summer of 2020, reporting that “two thirds of new fathers are still not taking paternity leave”. How great it must feel to be a ‘journalist’ at HR News.
Things got a little more interesting in 2021, when the impact of the Covid19 pandemic and the £65bn furlough scheme allowed EMW to rebrand the same set of raw HMRC data, obtained by an annual Freedom of Information request, as “paternity leave take-up drops to lowest level in 10 years”. This secured headlines in the Independent, and in the specialist journals Personnel Today and People Management. The ‘journalists’ at HR News must have been on furlough, or something.
However, with new fathers no longer able to choose between taking one or two weeks of statutory paternity leave on £150 per week or continuing on furlough on 80-100% of their normal wages, the number of statutory paternity pay claimants has bounced back, and this summer EMW reverted to “Only a third of eligible new fathers are taking paternity leave”. Which, as well as securing the headlines above, seemingly led the Fatherhood Institute to note that “latest figures suggest that only a third of fathers take paternity leave”.
Which is a little odd, because in a 2017 report the Fatherhood Institute noted that “large surveys covering a range of employment sectors consistently show between two-thirds and three-quarters of eligible fathers taking some statutory paternity leave, with 55% taking at least [sic] their full ten days”. Indeed, in June 2014, research by the Institute for Public Policy Research (IPPR) concluded that “55% of fathers take the full two weeks off work when their child is born”.
So, what is the rate of take-up of statutory paid paternity leave? Well, to answer that question, we need two bits of information: the number of new fathers who take statutory paid paternity leave (the numerator): and the number of new fathers who are eligible to take statutory paid paternity leave (the denominator).
The numerator is easy: HMRC has routinely provided the data in response to numerous Freedom of Information requests by the law firm EMW and others, including yours truly. [Update: The data is now publicly available in this Answer to a Parliamentary Question.] Here’s a table:
(It’s worth noting that these figures include both ‘fathers’ and a small number of same-sex partners of the birth mother. In 2021/22, for example, 2,200 (1.1%) of the 204,200 claimants were female. However, this detail has never troubled EMW or any of the ‘journalists’ who have typed up EMW’s press releases since 2019, so I am parking it too. Furthermore, the figures include a degree of double counting: HMRC has confirmed that “where a given spell of [statutory paternity pay] extends across [the boundary between] two years, the claimant will be included in both years’ figures”. However, this double counting matters more when we consider the number of SMP claimants – see below.)
The denominator, however, is tricky, as no one knows how many new fathers are eligible to take statutory paid paternity leave each year [and, since I posted this blog, the new BEIS minister, Kevin Hollinrake, has confirmed that the Government has not made any estimate of the number]. To arrive at their take-up rate of ‘one third’, EMW have assumed that the number of eligible new fathers is the same as the number of new mothers who start on statutory paid maternity leave, which – based on the raw data provided to them by HMRC – EMW have taken as 654,000 in 2018/19, 649,000 in 2019/20, 652,000 in 2020/21, and 636,000 in 2021/22.
As previously noted on this blog, there are several reasons why this assumption is not necessarily valid, but it is certainly one of several approaches to estimating the number of fathers who are eligible for statutory paternity leave that are available to us. Though we need to add to the figures in the previous paragraph at least some of the 50-60,000 new mothers who start on Maternity Allowance each year, as the HMRC figures used by EMW are only for Statutory Maternity Pay (SMP).
However, the raw HMRC figures for SMP used by EMW do not show the number of women who started on SMP in that year. Because – as explained previously on this blog – the raw HMRC figures include a significant amount of double counting.
Furthermore, if our starting point is the partners of women who start on statutory paid maternity leave (on either Maternity Allowance or SMP), then we have to allow for the fact that a significant proportion of those fathers are not eligible for statutory paid paternity leave. In some cases, this is because the father is not in employment (in recent years, the employment rate in the 25-34 and 35-49 age groups has been about 85%), and in others it is because the father is working, but has not worked for their current employer for long enough (at least 26 continuous weeks) or is self-employed.
The Fatherhood Institute cites a 2017 analysis by the TUC that it says indicates that “two out of five working fathers [i.e. 40%] are ineligible either because they are self-employed or because they have not worked for their employer for long enough”. In fact, the TUC itself suggested that 25% – not 40% – of working fathers are ineligible.
And, if we (i) adjust the raw HMRC data on SMP starts for double counting; (ii) add Maternity Allowance starts; (iii) apply the male employment rate (85%); and (iv) apply the TUC’s ineligibility rate of 25%, we get a chart showing ‘take-up of statutory paid paternity leave among eligible fathers’ that looks like this:
Now, I’m going to stick my neck out and suggest there is something wrong here. I don’t think take-up of statutory paid paternity leave among eligible fathers averages 92% (after excluding the atypical year 2020/21). One possibility is that the TUC’s suggestion that 25% of working fathers are ineligible for statutory paid paternity leave is wide of the mark. And another is that the number of women who start on statutory paid maternity leave is not as good a starting point for estimating take-up of statutory paid paternity leave among eligible fathers as EMW and everyone who cites their figures thinks it is. Yes, I’m looking at you, HR News.
An alternative proxy for the number of new fathers who are eligible for statutory paid paternity leave might be the number of new fathers who are eligible for shared parental leave. We don’t know the latter number either, but we do at least have an official Government estimate of it (see p29), which is a maximum of 285,000 per year. There are a number of reasons why the number of new fathers who are eligible for statutory paid paternity leave is likely to be different to the number who are eligible for shared parental leave, but using that 285,000 as a proxy does give us a somewhat less ridiculous-looking chart (note the slight change of scale on the right-hand side, made for aesthetic reasons):
Yes, that’s an annual average (excluding the atypical 2020/21) of at least 74% (it will be higher, if the actual number of eligible fathers is less than the maximum of 285,000 estimated by the Government). And 74% is a bit more than ‘one third’.
But if you don’t like that approach, I have others! One would be to start with the number of live births, reduce that by the proportion of new mothers who are single parents (BEIS has used 16%, but this may be out of date), apply the male employment rate (85%), and then apply the TUC’s ineligibility rate of 25%. This gives us a chart that looks like this (again, note the slight change of scale on the right hand side of the chart):
Excluding the atypical 2020/21, that’s an annual average of 53%. And there’s good news! Thanks to the falling number of live births, the trend is upwards: in 2021/22, by this measure, take-up was 56% – that is, much the same as the 55% suggested by that IPPR research in 2014. Which is quite a bit less than 74%, obviously. But still quite a bit more than ‘one third’.
If I had to put money on it, I’d say that take-up of statutory paid paternity leave among eligible fathers is probably somewhere between 53% and 74%, and most likely in the region of 60%. Which (a) is closer to the findings of those large surveys cited by the Fatherhood Institute; and (b) is not bad, when you consider the pitiful rate at which such statutory leave is paid (currently, just £156.66 per week, equivalent to less than half of the National Minimum Wage). Given the ‘health and safety’ purpose of such leave – to enable the father or other second parent to support the birth mother at and immediately after the birth – there is a very strong case for it to be paid at 90% of average weekly earnings, like the first six weeks of Statutory Maternity Pay, rather than at the flat rate.
That would help push take-up among eligible fathers towards 100% (in 2014, the IPPR suggested that it would raise take-up to 70%). But we also need to shrink that 25% of working new fathers (or whatever the proportion is) who are not even eligible for statutory paid paternity leave.
In December 2019, the Conservative general election manifesto committed the now lamented Boris Johnson-led Government to “look at ways to make it easier for fathers to take paternity leave”. However, three years on, there is no evidence of ministers or officials having since done any such ‘looking’, and certainly no policy proposals have been forthcoming. Maybe in due course.
On the other hand, in its September 2021 Green Paper on employment rights, the Labour Party committed the next Labour government to “extending statutory maternity and paternity leave”, which I am reliably informed means ‘extending eligibility’ to those who currently miss out on such entitlements, including by making them ‘Day One’ rights.
The way things are going, that next Labour government could be along quite soon. But let’s at least make 2023 the year when everyone throws EMW’s annual press release about take-up of paternity leave straight in the bin. Because it’s pretty clear that, whatever it may be, the rate of take-up of statutory paid paternity leave is not “only a third”.
Two months ago on this blog, I welcomed the (partial) return of both the quarterly ET statistics and the monthly HMCTS management information on ET receipts and disposals. And last week the latest set of the latter gave us the broad picture to June 2022, i.e. up to the end of Q1 of 2022/23.
As the following chart shows, total ET receipts (single claims + multiple claimant cases) continue to run at just under 60% of the peak level seen in late 2020, and at 75% of the level seen in the last three quarters before the onset of the Covid pandemic in March 2020.
However, even at a level not seen since before the abolition of ET fees in July 2017, receipts continue to exceed the number of disposals, and accordingly the backlog of cases is now creeping back towards the peak seen in early 2021.
Yes, it’s the Silly Season, which Wikipedia helpfully defines as “the period lasting for a few summer months typified by the emergence of frivolous news stories in the media”. So, naturally, a ‘news story’ that the Covid-related trend towards working from home (WFH) and hybrid working has led to a massive increase in the number of employment tribunal claims for bullying is all over the supposedly specialist Human Resources media.
The number of employment tribunal claims lodged [sic] citing allegations of bullying has increased by 44 per cent over the past 12 months, reaching record highs, new research has revealed. The analysis, conducted by law firm Fox & Partners, found that bullying claims [sic] increased from 581 to 835 between March 2021 and March 2022. The firm dubbed the findings a “canary in the mine” moment for many organisations, suggesting this may signal that leadership teams are failing to address a growth in toxic work cultures. People Management(the voice of the CIPD)
Ivor Adair, partner at Fox & Partners, said: “Tackling workplace bullying is no easy task, particularly in changing work environments. The record number of bullying claims [sic] is a worrying sign that some leadership teams have struggled to maintain healthy workplaces during the shift to hybrid working.” Personnel Today
Research from law firm Fox and Partners found there were 835 tribunals relating to bullying in 2021/22, up 44% from the previous year. The number of claims [sic] has more than doubled since the 412 recorded in 2017/18. Hybrid working environments, the report suggested, have brought new forms of bullying to the workplace, such as leaving colleagues out of remote meetings, comments over video calls, and gossiping over messaging platforms.HR magazine
“WFH may not be working for everyone. A record number of bullying claims [sic] have featured in lawsuits at the UK’s employment courts over the past year, in a sign that while working from home is welcomed by many, it’s also contributing to tensions for others.”Bloomberg UK
There is just one teeny weeny problem with this story: neither Fox & Partners nor anybody else know how many employment tribunal claims citing allegations of bullying were made in each year since 2017/18, as ‘bullying’ is not a jurisdiction identified in the official tribunal statistics published by the Ministry of Injustice (and the Ministry has not yet published any breakdown of new tribunal claims by jurisdiction for 2021/22). And, if we do not know how many claims there have been, we cannot say that there has been any increase. And we certainly cannot ascribe that increase to WFH or hybrid working.
No, all that Fox & Partners have done is conduct a word search for ‘bullying’ on the HMCTS online register of employment tribunal decisions. But the ET decisions on the register are only a small proportion – about one in eight – of all ET claims made, as the great majority of claims are settled or withdrawn without a tribunal decision. For example, in 2017/18 there were 110,098 ET claims, but only 13,560 ET decisions were published on the register. And in 2020/21 there were 117,926 claims, but only 14,579 decisions were published on the register.
Furthermore, the number of ET decisions containing any particular word or phrase such as ‘bullying’ or ‘numpty employment lawyer’ is of course influenced by the total number of ET decisions, which goes up and down (in 2021/22, just 12,680 decisions were published on the register, down from 25,895 in 2019/20). In other words, what would matter (if it mattered at all) is not the number of decisions containing that word or phrase, but the proportion of all decisions containing that word or phrase.
So, while the Fox & Partners ‘research’ (which I replicated in about five minutes on the register earlier today) tells us that the number of decisions including the word ‘bullying’ increased from 412 in 2017/18 to 708 in 2019/20, it overlooks or deliberately ignores the fact that the total number of decisions published on the register also nearly doubled, from 13,560 in 2017/18, to 25,895 in 2019/20. So what is presented as a 72% increase, from 412 to 708, was actually a decrease, from 3.04% to 2.73%.
In any case, an ET decision can of course include the word ‘bullying’ without the ET claim having had anything to do with the Covid pandemic, working from home, or hybrid working. Indeed, it can include the word ‘bullying’ without the claim having involved any allegation(s) of bullying – it could just be an incidental reference to the employer’s Harassment & Anti-Bullying Policy, for example. (Between 2019/20 and 2021/22 there was a 1,494% increase in the number of ET decisions containing the word ‘hybrid’, but … well, I’ll leave you to think about why that was). If you don’t believe me, take a look at the first few decisions that come up if you do a word search for ‘bullying’ in 2021/22. And do feel free to let me know how many decisions you can find in which the claim related to leaving colleagues out of remote meetings, making comments over video calls, or gossiping over messaging platforms.
Fox & Partners would have needed to read through each of the 835 decisions in 2021/22 that include the word ‘bullying’, and those in other years, and tell us how many of the associated claims actually involved allegations of bullying linked to WFH or hybrid working. But they haven’t done that. Because that would have taken (a lot) more than five minutes.
All Fox & Partners have done is spot a random and meaningless increase in the number of ET decisions (not claims) containing the word ‘bullying’, and then assert a link to the pandemic-related trend towards WFH and hybrid working. But that ‘link’ is entirely spurious. Fox & Partners have not identified any upward trend in the number of ET claims citing allegations of bullying, let alone any upward trend in the number of ET claims citing allegations of bullying linked to WFH or hybrid working. So the resultant media coverage is not just frivolous, but entirely bogus.
Fox & Partners may just as well have asserted a link between the trend towards WFH and the 73% increase in the number of ET decisions containing the word ‘chocolate’ in 2021/22. Or the 46% increase in the number of ET decisions containing the word ‘penis’. Well, it stands to reason, doesn’t it? The trend towards WFH is allowing everyone to get their dick out during office hours.
WE INTERRUPT THIS BLOG TO BRING YOU AN IMPORTANT PUBLIC SERVICE ANNOUNCEMENT: CORRELATION DOES NOT IMPLY CAUSATION
Yes, as any regular reader(s) of this blog will have spotted, this is just another variant of 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 Totally Rubbish Story About ET Claim Numbers’ trick.
And, as documented on this blog, numpty journalists fall for it every time, mindlessly typing out the law firm’s press release and hitting the ‘publish’ button. My favourite is still the 13,000% increase in age discrimination claims in Scotland in October 2020, which got typed up by numpty journalists at the Guardian, Daily Express, Telegraph, Daily Mail and Yorkshire Post, as well as at People Management and Personnel Today. Fox & Partners are regular performers of the trick, as are GQ Littler, who did a similar search for ‘flexible working’ on the register of ET decisions in January (you can even just tick a box to search decisions for ‘flexible working’).
The Silly Season will soon be over. But unscrupulous employment lawyers will continue to use this tired trick, and numpty journalists will continue to fall for it.
Update, November 2023: Sadly, Minister Scully did not get to do much, if any, levelling-up as Minister of State at the DLUHC, as in October 2022 he was demoted back to Parliamentary Under-Secretary of State and moved to the Department for Digital, Culture, Media & Sport. In February 2023 he was shunted to the newly-created Department for Science, Innovation and Technology. And on 13 November he was finally given what he calls “the Spanish Archer” by Rishi Sunak.
Further update: On 4 March 2024, Mr Scully announced on social media that he will stand down as an MP at the coming General Election. His parting gift to politics was to assert that mainstream politicians can “work with the bell curve or become the bell-ends”. Amen to that.
As noted previously on this blog, the introduction of a new Case Management System in March 2021 has led to a dearth of official statistics on Employment Tribunal receipts and disposals. And, in January this year, the President of the Employment Tribunals in England & Wales, Judge Barry Clarke, noted that this ongoing ‘data silence’ was “a cause of immense frustration to the leadership judges of the Employment Tribunals. For obvious reasons, the lack of reliable data was significantly impairing operational and strategic decision-making.”
In October, HMCTS did release some limited data on Employment Tribunal receipts (but not disposals) for the period August 2020 to August 2021, but this simply led some – including yours truly – to question whether it was credible that the number of new cases had fallen by 42% between November 2020 and May 2021 – that is, just when the new Case Management System was being introduced.
Well, yesterday HMCTS not only included some data on both Employment Tribunal receipts and disposals in the latest set of quarterly tribunal statistics, up to March 2022, but also published some new monthly management information up to April 2022. And this confirms not only that the number of new cases did indeed fall by 42% between November 2020 and May 2021, but that it continued to fall further: in December 2021, the number of new cases (2,298) was 51% down on that in November 2020 (4,669). And we have to assume that HMCTS is now pretty confident of the reliability of these figures – so, sorry for doubting you, HMCTS peeps.
In the first few months of 2022, the number of new cases has bounced back a bit, but the new data confirms that the number of new cases has fallen significantly since late 2020, and is now running somewhat below pre-Covid levels.
Anyway, that’s the good news. The bad news is that, with disposals also down slightly, this pretty dramatic fall in new case numbers has not (yet) been matched by a significant fall in the deeply problematic backlog of cases, which – after receding from its Covid-induced peak in late 2020 – has flatlined over the last four quarters. This needs to change.
In recent years, BEIS minister Paul Scully – a strong contender for the hotly-contested title of Most Idiotic Minister in the Johnson Government – has repeatedly and brazenly claimed that “the UK’s maternity leave system is one of the most generous in the world”. Here he is in June 2020, for example, defending the Government’s claim that “the UK’s maternity leave offer is among the most generous in the world” while giving oral evidence to the Petitions Committee of MPs. And here he is two years later, in February 2022, mindlessly regurgitating that claim in the House of Commons.
And, last week, Minister Scully was at it again. In Answer to a Parliamentary Question tabled by Labour’s shadow employment rights minister Justin Madders MP, the Minister boldly asserted that “the UK’s maternity leave entitlement is one of the most generous in the world, with employed women entitled to 52 weeks of maternity leave, of which 39 [weeks] are paid”.
Doh! The UK’s paid maternity leave entitlement is only “one of the most generous in the world” if you overlook the teeny-weeny fact that, in most other comparable countries, most of the statutory paid leave available to working women who have just given birth is called parental leave, not maternity leave. And, in the UK, new mothers get no paid parental leave. Zilch. Nada. Rien. Here’s a chart that even Minister Scully should be able to get his head around.
Yes, in terms of the duration of paid maternity/parental leave available to new working mothers, the UK’s maternity leave system is more generous than that in Belgium, Iceland, Ireland, Malta, Portugal and Switzerland. But it is less generous than that in Austria, Bulgaria, Canada, Denmark, Estonia, France, Germany, Hungary, Italy, Japan, Latvia, Norway, Poland, Romania, Sweden … need I go on?
And do new mothers in Austria, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Italy, Japan, Latvia, Lithuania, Norway, Poland, Romania, Slovenia and Sweden feel hard done by because they get fewer weeks of paid maternity leave than women in the UK? Of course they don’t.
So, if the UK’s maternity leave system isn’t “one of the most generous in the world” in terms of the duration of the paid leave available to new mothers, maybe Minister Scully had another measure in mind? Because, of course, the overall ‘generosity’ of any system of paid leave is a combination of the length of the leave entitlement, and the rate at which it is paid.
The OECD uses two alternative measures of the overall ‘generosity’ of paid maternity/parental leave. The first of these is the average payment rate, i.e. the % of previous earnings replaced over the length of the paid maternity/parental leave entitlement for a woman earning 100% of average national full-time earnings. And, as the following chart clearly shows, on this measure the UK’s maternity leave system is very far from being “one of the most generous in the world”.
The second measure of the ‘generosity’ of paid maternity/parental leave used by the OECD is full-rate equivalent, i.e. the duration of paid maternity/parental leave in weeks if it were paid at 100% of previous earnings. And, as the following chart shows, some countries (Finland, Hungary, Latvia, the Netherlands) do better under this measure than they do under ‘average payment rate’. But the UK … not so much.
In short, Minister Scully’s claim that “the UK’s maternity leave offer is among the most generous in the world” is as delusional as the Prime Minister’s defence of his attendance at boozy parties in Downing Street during lockdown. The Covid regulations did not allow ‘work leaving dos’ or ‘morale-boosting speeches by the boss’, and at less than half of the legal minimum wage the UK’s statutory maternity and parental pay of just £156.66 per week is not going to secure the UK a top slot in international league tables.
But with a new parliamentary e-petition calling (somewhat modestly) for that pitiful rate of pay to be increased in line with the cost of living heading towards the threshold for a Westminster Hall debate of 100,000 signatures, it may not be long before Minister Scully is back in the House of Commons, telling MPs that the UK’s maternity leave offer is already among the most generous in the world. And – who knows? – by then the Minister may be able to tell us the outcome of the review of the UK’s chronically failing Shared Parental Leave scheme that his officials started more than four years ago.
The Terms of Reference for the Warman Review appear to have been written by an intern at the Cabinet Office. On their first day in the job. But that doesn’t matter because, thanks to an interview that the Prime Minister gave to the Daily Fail on Friday, we already know that the Review will conclude that working from home involves far too much making coffee and walking slowly to the fridge to hack off a piece of Beaufort d’été, and everyone should just get back to the office.
Meanwhile, some family rights groups are doing what ineffectual BEIS officials want them to do: provide some cover for ineffectual BEIS ministers by bigging up the possibility of Government-backed Private Members’ Bills designed to deliver some of the Government’s abandoned policy pledges ahead of the PMB ballot later this week (a possible ‘strategy’ first flagged by The Times on 2 May, and by yours truly on this blog).
Of course, the Employment Bill’s omission from the Queen’s Speech on 10 May does not mean that ministers cannot introduce the Bill – or one or more mini-Employment Bills – in this parliamentary session. Governments routinely introduce new legislation that wasn’t mentioned in the previous Queen’s Speech. But with three other (sizeable) Bills in the new legislative programme, it does seem unlikely that BEIS ministers will find the time and energy to pull rabbits out of hats before a general election in 2023.
In any case, the principal obstacle to progress on the outstanding promises on workers’ rights is not the Johnson Government’s lack of parliamentary time but – as Women & Equalities Committee chair Caroline Nokes MP noted on Friday – its “lack of will or care to foster a fairer and more equal society”.
Whatever, in the House of Commons on Thursday – during the Fairness at Work-themed debate on the Queen’s Speech – equalities minister Kemi Badenoch insisted both that the Government doesn’t need to have the Employment Bill that it has repeatedly promised, and that the Government is still committed to having the repeatedly promised Employment Bill that it doesn’t need.
Labour Pains 