Tag Archives: Pregnancy discrimination

Queen’s Speech: not many promises, but plenty of challenges

By Richard Dunstan, Workflex blog editor

With the general election fast becoming a distant memory, new ministers have been appointed, the House of Commons has returned to life, and the Conservative majority government has set out its legislative plans for the first year of its five-year term. Yet, somewhat surprisingly, last week’s Queen’s Speech somehow failed even to mention the ‘hard-working families’ of which we heard so much – from politicians of all parties – during the election campaign, with even the Childcare Bill (see below) set to help “working people”. So, what can we expect the new Government to deliver in terms of ‘families and work’ policy over the next few years?

The short answer, judging by the Conservative manifesto and ministerial pronouncements to date, is ‘probably not a lot’. The manifesto was disappointingly short on policy pledges that might help ensure work actually works for all families, with no reference at all to flexible or ‘family-friendly’ working, or the need to increase the supply of good quality part-time jobs. In contrast to both the Labour and Liberal Democrat manifestos, there was no pledge of additional paternity leave, and no mention at all of shared parental leave. And there was nothing to suggest the new government will address the growing but largely unsupported role of grandparents in childcare.

To the surprise of some, the manifesto did of course pledge to increase the existing entitlement of free childcare for working parents of three- and four-year-olds in England, from 15 to 30 hours per week during term-time (i.e. 38 weeks per year). And, with the publication of the Childcare Bill this week, ministers are now suggesting that roll out of the increased entitlement will begin in September 2016, a “year earlier than planned”.

With costs having soared since 2010, and many parents struggling, more free childcare has to be welcome.  Indeed, as Giselle Cory of the IPPR think tank noted in the New Statesman last week, there is unlikely to be much political argument over the aim of the Bill: “childcare is a sound investment: fund it now and we’ll see the benefits for years to come, in rising levels of maternal employment, additional tax revenues, falling child poverty, and improved child development outcomes.” However, as Giselle further notes: “the rationale is simple; delivering the policy less so.” In the words of  The Economist magazine:

The [Bill] would make childcare cheaper for most families. But it would not address another problem: the shortage of places. In spite of a fast-growing population, the number of nursery places in Britain remained unchanged between 2006 and 2014, and has only just started to pick up. Growth has been stunted because nurseries are hard to run at a profit.

One reason is rising rents, particularly in London, which push up nurseries’ costs. And there is little that nurseries can cut back on: most of their employees already earn little more than the minimum wage.

But another reason is that the government underpays nurseries for the 15 hours a week that they must provide free of charge. The shortfall amounts to £800 per child per year. If the new 30-hour allowance is funded at the same miserly rate, the shortage of places could be exacerbated.

So it is welcome that the government has this week committed to “increase the average funding rates paid to providers (the hourly funding provided for each free place)”, with Department for Eduction minister Sam Gyimah set to oversee a review “before summer”, even if it is still far from clear how any increased rate would itself be funded. Ministers have so far committed only £350 million a year to fund the pledge, but the Pre-School Learning Alliance of private and voluntary providers argues this would leave a shortfall of £250m a year, on top of the existing annual shortfall of £100m. And it’s worth remembering that, as recently as December, Sam Gyimah was claiming that Labour’s  very similar but less ambitious promise to increase the free childcare allowance to just 25 hours per week would cost “at least £1.5 billion”.

Elsewhere in the Queen’s Speech, there was little cheer for struggling families – working or otherwise. The Full Employment & Welfare Bill will reduce the current household benefit cap from £26,000 to £23,000 per year, amid warnings that this could plunge 40,000 children into poverty. Ministers have yet to spell out where pledged cuts of £12 billion to the welfare budget will actually fall, with the well-respected Institute for Fiscal Studies warning that further cuts on such a scale will most likely either increase poverty or undermine the Full Employment & Welfare Bill’s aim to “ensure that it pays to work” by weakening work incentives. And the Enterprise Bill’s principal aim of “cutting red tape and saving businesses at least £10 billion [by 2020]” seems to offer little hope any progressive reform of maternity, paternity and shared parental leave, or of employment rights more generally.

In that context, it must be hoped that the publication – possibly later this month – by the Equality & Human Rights Commission of the findings of its £1 million programme of research into pregnancy and maternity discrimination at work, will at least prompt a ministerial rethink in relation to the prohibitively high employment tribunal fees introduced in July 2013. For all the indications are that the Commission will report such unlawful discrimination to be more common in Britain’s workplaces than ever before.

All in all, this means there remains a lot of work to do in convincing ministers of the benefits of making work work for all. Together with our partner organisations – such as the Family & Childcare Trust, Gingerbread, the Fawcett Society, NCT, and the TUC – we at Working Families will be working hard to promote the benefits of tackling low pay (including the disturbingly low rate of statutory maternity, paternity and shared parental leave pay), adopting a ‘flexible by default’ approach to job design and recruitment, extending paternity leave, and creating a new right to a period of ‘adjustment leave’ to enable families to weather a ‘life shock’ without giving up work.

We will press ministers to conduct their long-promised review of employment tribunal fees, and to consider whether further governmental action is necessary to tackle zero-hours contracts and other forms of ‘casualisation’ in the labour market – an issue highlighted in the most recent annual report of our legal advice team. And we will work to ensure that the Childcare Bill addresses the particularly acute childcare crunch faced by parents of disabled and special needs children.

 

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A pregnant question for new ministers

By Richard Dunstan, Workflex blog editor

Sally, a young woman working 30 hours per week as a waitress and newly pregnant with her first child, was wrongly told by her manager/employer that she was only entitled to take six weeks of maternity leave, and warned that she would be sacked if she did not return to work at the end of that period. When Sally protested that she was legally entitled to 12 months of maternity leave – including nine months on statutory maternity pay – her hours were summarily reduced to just 15 hours per week, a deliberate move to lower Sally’s wages below the level necessary for her to retain an entitlement to statutory maternity pay.

Sally is one of the hundreds of women who contacted the Working Families legal helpline in recent years after being subjected to pregnancy or maternity discrimination by their employer. In 2014, as in previous years, about one in ten of the 2,350 women who contacted the helpline over the year appeared to our advisers to have been subject to such unlawful discrimination.

Sadly, such discrimination is nothing new: in 2005, a landmark investigation by the Equal Opportunities Commission concluded that half of all pregnant working women suffered a related disadvantage at work, and that some 30,000 pregnant women and new mothers were being forced out of their jobs each year. But all the available evidence suggests that – due not least to rapid growth in the use of zero-hours contracts and other ‘casualised’ forms of employment since the onset of economic recession in 2008 – such discrimination is now more common in UK workplaces than ever before, with rogue employers seemingly emboldened to discriminate ever more blatantly.

That’s certainly the impression given by the shocking personal stories posted on  Pregnant then screwed, a new website founded by Joeli Brearley, who lost her job as a self-employed project manager after becoming pregnant with her first child. In Joeli’s own words, the website is intended to provide:

“A place for women to tell their stories anonymously and in their own words. This is not only a cathartic way to release some of the bruising and unfair experiences they have undergone, it is also a medium to shine a light on this systemic problem. It is a way to open public debate and change common perceptions about pregnant women whilst campaigning for more effective laws to protect them”.

In just a few weeks, Joeli has generated an impressive amount of media coverage, appearing on BBC TV’s Victoria Live show and BBC Radio 4’s Woman’s Hour, and in the Guardian and Daily Telegraph. And it must be hoped that newly installed government ministers such as the Minister for Women and Equalities, Nicky Morgan, the Justice Secretary, Michael Gove, and the Business Secretary, Sajiv Javid, have been paying attention while they get their feet under their Whitehall desks.  Because – just as pregnancy and maternity discrimination has become ever more common in UK workplaces – it has also become far more difficult for women to challenge such unlawful action by their employer.

Access to already overstretched sources of legal advice and support – such as law centres and Citizens Advice Bureaux – has been severely curtailed by cuts to local authority funding and the abolition of almost all civil legal aid. In March this year, the justice select committee of MPs reported that one in six law centres have closed since 2013, and that the CAB service has lost 350 specialist advisers. And, perhaps most damagingly of all, the introduction of upfront employment tribunal fees of up to £1,200 by the Ministry of Justice in July 2013 has created a significant barrier to justice, leading to an 80 per cent fall in the number of sex or pregnancy related discrimination claims.

sex

During the General Election campaign, former business secretary Vince Cable conceded that the Coalition’s introduction of fees had been a “very bad” mistake, as the fees are “discouraging people – and especially low-paid women – from pursuing their [legal] rights”. Accusing former Conservative ministerial colleagues such as former justice secretary Chris Grayling of “an act of remarkable bad faith” for failing to carry out a promised review of the fees regime after 12 months, Dr Cable told the Independent “we urgently need a proper review to be sure no one is being denied access to justice”.

As a member of the Alliance Against Pregnancy Discrimination, Working Families believes that conducting that long-promised review of the fees regime must now be an urgent priority for new ministers. In February, shortly before the dissolution of Parliament, then minister for women and equalities Nicky Morgan told the House of Commons:

“We have made a commitment to conduct a review of the introduction of the fees, and we will do so, but we think that this is a matter for the next Administration and the next Parliament”.

Having since been reappointed to her Cabinet-level role, Nicky Morgan is a senior member of that ‘next Administration’, and it must be hoped that she is now pressing the new justice secretary, Michael Gove, to make good on her promise to Parliament. For the blight of unlawful pregnancy and maternity discrimination by rogue employers will not be tackled so long as women are denied effective access to justice.

 

 

Tackling the wrong kind of flexibility: the work of our legal helpline in 2014

By Richard Dunstan, Workflex blog editor

Amid the biggest living standards crisis in a generation, and with research by the Institute for Fiscal Studies and the London School of Economics suggesting that the Coalition’s tax and benefit reforms have hit families with children under five harder than any other household type, 2014 was another busy year for the Working Families helpline team.

Simon, a single parent working for a provider of services to the elderly, called the helpline after his employer refused his formal request to change his work pattern to accommodate an unavoidable change in his childcare. Although employed on a zero-hours contract, Simon had for several years worked five full days a week, including Saturday and Sunday. But now his childcare support had changed, Simon could no longer work weekends, and he was afraid he would have to give up his job.

Simon is one of 2,766 working parents and carers – 85 per cent of them women, and almost one in four a single parent – who telephoned or emailed the helpline in 2014. The helpline team provides free advice on key work-life balance rights such as maternity and paternity leave and pay, provides support on requesting and negotiating flexible working – or with contesting imposed changes to an existing working arrangement – and advises on challenging pregnancy, maternity or other discrimination at work and accessing relevant social security benefits and tax credits.

The team’s annual report, published today, shows that, despite some reduced capacity due to staff changes, and an increase in the proportion of callers requiring more than one interaction, the team advised and supported almost 200 more callers than in 2013. And, as in previous years, the most common issues raised by callers were: maternity leave and pay; benefits and tax credits; other maternity rights; flexible working; and pregnancy or maternity related discrimination.

With essential living costs having risen faster than wages in recent years, and childcare costs continuing to spiral upwards, many of those who contacted the helpline were simply struggling to find a way to make work pay.

Nicky called the helpline shortly after returning to work from maternity leave, because she was struggling with the cost of childcare for her six-months-old child. Nicky earns just over £20,000 per year, and her partner – an apprentice electrician – £15,000 per year. The helpline team was able to confirm that Nicky is receiving the right level of working tax credit, but Nicky feels she has no choice but to give up work to care for her child.

Many of the women on maternity leave who contacted the helpline team were finding it difficult to manage on the weekly statutory maternity pay of just £138.18, capped at below-inflation annual increases since 2013 and equal to just 60 per cent of the national minimum wage.

Jackie called the helpline while on maternity leave and receiving statutory maternity pay, because she wanted to take more than nine months’ maternity leave but simply couldn’t afford to take unpaid leave. The helpline team reports that this is a “very common call”, and that many women in low-paid jobs have little choice but to return to work at the end of statutory maternity pay.

Many others who called or emailed the helpline in 2014 were trying to adopt a flexible working pattern in response to a major change in their caring responsibilities, such as taking on the care of an elderly parent, relationship breakdown, or the onset of disability of a child or partner. And, in theory at least, this became easier from June 2014, with the extension to all employees of the right to request flexible working, previously limited to parents and carers. In the words of the then employment relations minister, Jo Swinson, “we want to see flexible working become the norm, not the exception”.

However, the helpline team report that, if there is one stand-out feature of their work in 2014, it is that the notion of flexible working is simply illusory for all too many of the parents and carers who contact the team for help.

The wrong kind of flexibility

In low-paid sectors like social care, retail, cleaning, and hospitality, hundreds of thousands of men and especially women work on zero-hours contracts and other ‘casualised’ forms of employment that offer little in the way of pay, guaranteed hours or job security.  And what Citizens Advice calls the “hyper-flexibility” of such jobs is all one way.

By their nature, such insecure jobs, with varying and unpredictable weekly hours, can result in significant variations in income, making it hard to arrange (or retain) childcare and disrupting social security payments. But they also make it very difficult if not impossible for workers to successfully request a change in their hours or working pattern to accommodate a change in their family circumstances, or to resist a problematic change in their hours or working pattern imposed by their employer.

For a refusal to work shorter, longer or simply different hours can easily lead to there being no hours at all. And the introduction of upfront tribunal fees in July 2013, unaffordable to many, has made it harder than it’s ever been to challenge any unlawful action on the part of the employer. In the months following the introduction of fees, claims for unfair dismissal fell by 65 per cent, and claims for sex or pregnancy discrimination fell by 80 per cent. In the words of one senior employment judge, it is “difficult to resist the conclusion that access to justice has been curtailed”.

Mandy had worked for a bank on a zero-hours contract for several months without any indication from her employer of dissatisfaction with her work. However, when Mandy informed her employer she was pregnant, her manager stated there had been complaints about her work. And, when Mandy challenged this, the manager changed the story to “you haven’t been working hard enough”. Mandy’s hours were then reduced to zero – in effect, she was summarily dismissed.

Similarly, Denise, employed on a zero-hours contract, had had her working hours substantially cut since she had taken time off for a pregnancy-related illness. When she had challenged her employer, pointing out that several new staff had been taken on, she was told “we need people we can rely on”. The helpline team advised Denise that her treatment amounted to pregnancy discrimination, but Denise said there was no way she could afford to pay the fees of £1,200 to pursue a tribunal claim.

Against this rather grim backdrop, the helpline team can – and frequently does – make a huge difference to the situation of individual callers. Good information and personalised advice empowers callers to make an informed decision about whether and how to negotiate with their employer, the most effective way to challenge unlawful treatment, or how to change their working pattern in such a way to maximise their income once benefit payments, tax credit awards and childcare costs are taken into account.

Evidence from the casework of the helpline team also informs the wider policy and campaigning activity of Working Families, including our ‘families and work’ manifesto for next month’s General Election. So we remain extremely grateful to the team’s key funders, Matrix Chambers and the Big Lottery Fund, and to our many other supporters who make the work of the team possible.

Manifesto 2015: how does Labour measure up?

In the second of our series of Workflex posts assessing the likely manifesto pledges of the main political parties, Richard Dunstan looks at how Labour Party policy measures up against our own ‘Families & Work’ manifesto for May 2015.

On the eve of its conference in Manchester, Labour released the annual report of its National Policy Forum (NPF), which oversees the development of party policy. At 218 pages, the report is almost three times as long as the Liberal Democrats’ pre-manifesto. And, with most of those pages consisting entirely of densely typed text, it’s a tome that is unlikely to be read cover-to-cover by anyone other than hard-core party members. But having been agreed by delegates in Manchester, the document now forms Labour’s “official policy programme”. So how does this programme measure up?

Time and equality

While there is disappointingly little mention of fathers – and certainly nothing to match the Liberal Democrats’ headline promise of six weeks’ statutory paternity leave – the NPF report rightly notes that the right to request flexible working has been weakened by abolition of the statutory procedure.” It pledges “Labour will support flexible working for parents, and will consider how best to support grandparents who need to fit the care of their grandchildren around their working hours.”

Labour will also “examine ways to improve support for those who are bereaved, including how flexible working rules can be used to support them.” However, the report is silent on whether Labour will continue with, tweak, or ditch the right to shared parental leave (SPL), which will have come into force just one month before the next government takes office. In our ‘Families & Work’ manifesto, we call for reform of SPL so as to simplify the legal framework, open eligibility to all fathers from Day One of their employment, and enable SPL to be taken on a part-time basis.

There is welcome recognition of the proliferation of pregnancy and maternity discrimination in UK workplaces in recent years, and a pledge to “close legal loopholes which allow pregnancy discrimination.”  More broadly, there is a “commitment to ensuring that all workers are properly protected in the workplace” and to “acting to end unfair practices and abuses in the labour market.” However, the NPF report does not explain how “increased protection for agency workers” will be enforced by an employment agencies inspectorate that, since 2010, has been reduced to a rump of just three staff.

But it is one of the few more specific policy pledges that is also the most significant. Noting that the hefty, upfront employment tribunal fees introduced in July 2013 have “resulted in prohibitive costs locking people out of justice they are entitled to”, the NPF report commits Labour to abolishing the fees regime and replacing it with “a system where affordability will not be a barrier to justice”. This would be a very welcome move, as restoring access to the tribunal system is essential to tackling pregnancy and other discrimination in the workplace, and to underpinning the newly-extended right to request flexible working.

Money

One of the few policy announcements in Manchester to grab headlines was leader Ed Miliband’s pledge to raise the National Minimum Wage (NMW) rate to £8.00 per hour “by 2020”, which in practice means from 1 October 2019. This put flesh on the bone of the NPF report’s commitment to giving the Low Pay Commission a “new framework” with a “strengthened role in tackling in-work poverty,” and a “five year target” for increasing the NMW rate “so that it gets closer to average earnings.” The proposed hourly rate of £8.00 from October 2019 would raise the NMW from 54 to 58 per cent of the median wage, but still leave it some way short of 66 per cent, the standard definition of ‘low pay’.

Interestingly, the NPF report also states that HMRC’s role in enforcing the NMW “should be expanded to include non-payment of holiday pay” and that Labour “will also consider expanding enforcement to include non-payment of statutory sick pay and statutory maternity, paternity and adoption pay.” That would be very welcome.

Disappointingly, there is no commitment to addressing the ludicrously low rate at which statutory maternity, paternity and adoption leave are currently paid. In our ‘Families & Work’ manifesto, we call for restoration of the real value of such pay, lost as a result of the one per cent cap on annual uprating since April 2013, and a programme of annual, real-terms increases to bring parity with the NMW within ten years.

On Universal Credit, the NPF report promises “a full review” and, if it goes ahead, “major changes [to] ensure the system makes work pay for both first and second earners … and is easy to access.”  This would be welcome.  In our ‘Families & Work’ manifesto, we suggest the potential of Universal Credit to ensure that work really does pay could be enhanced by (a) introducing a work allowance for second earners, and (b) strengthening safeguards to prevent parents being pushed into family-unfriendly jobs by the threat of sanctions.

Childcare

The NPF report reiterates Labour’s previously announced policy of “extending free childcare for three and four year olds from 15 to 25 hours per week for working parents, paid for by an increase in the bank levy”, together with “access to ‘wraparound’ childcare from 8am to 6pm” for parents of primary school children, through their local school. The report states this will “benefit those families that most require childcare support and currently struggle to find good quality before-and-after school care.”

Clearly, any increase in the provision of free childcare is welcome. But, as with the Liberal Democrats’ pre-manifesto, Labour’s offer falls a long way short of the “national strategy on childcare, aimed at delivering universal access to good quality, affordable childcare within ten years” that we call for in our ‘Families & Work’ manifesto.  And again it is disappointing to find no specific pledge to address the harsh childcare crunch faced by parents of disabled children – the subject of a recent parliamentary inquiry.

[The next post in this series will look at how the Conservative Party’s policies measure up against our ‘Families & Work’ manifesto]

 

 

 

Down down, deeper and down: the impact of employment tribunal fees on workers’ access to justice

By Richard Dunstan, Policy & Parliamentary Campaigns Officer

In early 2012, Working Families joined many other organisations – including the Equality & Human Rights Commission, Citizens Advice, Maternity Action and the TUC – in warning that the hefty, upfront fees for employment tribunal claimants on which the Ministry of Justice was then consulting would create a significant barrier to justice. In particular, we noted “an increase in the number of calls to our legal helpline about pregnancy discrimination”, and expressed our fear that fees of up to £1,200 would deter vulnerable women from bringing a tribunal claim for such unlawful discrimination.  But ministers were unswayed, and the fees regime came into force on 29 July 2013.

Last October, our fears appeared to have been realised when, in response to an ultimately unsuccessful legal challenge to the fees regime brought by trade union UNISON, the Ministry released provisional figures showing that the number of tribunal claims brought by individual workers had fallen from an average of 4,380 per month in the first half of 2013, to just 1,003 in September.

In rejecting UNISON’s legal challenge (on the basis that it was too early to reach a firm conclusion on the impact of the fees), the High Court judges noted that “if [these provisional figures] are anything like accurate, then the impact of the fees has been dramatic”.  And the judges suggested that, should the Lord Chancellor’s optimism that the number of claims would soon bounce back to more ‘normal’ levels prove unfounded, then they would “expect the Lord Chancellor to change the [fees regime] without any need for further litigation”.

Well, this morning the Ministry of Justice published tribunal statistics for the three-month period October to December 2013 (i.e. Quarter 3 of 2013/14).  These confirm that the provisional figures issued by the Ministry in October were indeed accurate, as they have not been significantly revised.  And they show that, following the dramatic fall in September, the number of claims by individual workers* picked up only a little in the following three months. There were just 1,618 claims by individual workers in October, 1,839 in November, and 1,504 in December – a total of 4,961.  As the following chart shows, compared to previous quarters the drop is startling.

Chart 1: single claims by individual workers, by quarter, April 2012 to December 2013 ET chart 13 03 14

In short, in Quarter 3 of 2013/14, the number of claims by individual workers was just 33 per cent what it was in the same quarter of 2012/13, and just 37 per cent of the average over the five quarters before the introduction of fees.  And the number of such claims in December 2013 was 35 per cent of the number in December 2012.  I think a High Court judge would call these figures dramatic, and UNISON was quick to call them “shocking”.

Given the evident increase in pregnancy discrimination in the workplace, it is particularly concerning that the number of sex discrimination claims (NB both individual and multiple claims) appears to have been especially affected, falling from 4,342 in Quarter 3 of 2012/13 to just 980 (22 per cent) in Quarter 3 of 2013/14.  As the TUC notes, this suggests that women have been “the main losers” from the introduction of fees.

Chart 2: discrimination claims (singles & multiples) chart discrimination claims

So, it would seem our fears about the impact of the fees on access to justice have been realised.  And, certainly, our legal helpline team has already dealt with several cases in which the adviser considers the client to have strong grounds to bring a tribunal claim, but the client has been deterred from doing so by the fees. Told by our adviser that her only option was to issue a tribunal claim, and what that would cost, one woman retorted: “I can’t afford that, I’ve just been on maternity leave!” Just last week, the BIS employment relations minister, Jenny Willott, noted that it “costs on average £1,800 to present a tribunal claim” for pregnancy discrimination, and that figure does not include the fees.

Ministers have argued that access to justice is protected for low-income claimants by the existence of a fees remission scheme.  However, put against the claims figures released today, the only figures on fee remission applications that the Ministry has been able or willing to release to date suggest that only about three per cent of all claimants obtain any fee remission.

So, will the Lord Chancellor, Chris Grayling, now reform the fees regime, for example by reducing claimant fees to a nominal level, as Working Families, Citizens Advice, the CBI and others suggested in 2012? That seems unlikely, at least for the time being.  I expect to see ministers expressing optimism that the slight increase in the number of individual claims in Quarter 3, compared to September’s stunning low, is a trend that is continuing, and will continue. And justice minister Shailesh Vara is reported by Personnel Today as saying:

“We think that the fees are not the only reason for the fall in the number of employment tribunal receipts; there has been a longer term downward trend as the economy has strengthened, and some of the big [multiple claim] cases involving airlines are now being concluded.”

However, as the following chart shows, the monthly figures for Quarter 3 are way below any marginal, long-term downward trend (the figures for July and August need to be ignored, as they were exceptional months, with a rush to get claims in before the fees came into force on 29 July followed by a compensatory fall in August).  And they don’t suggest a steady upward trend since October either.  At least, not yet.

Chart 3: single claims by individual workers, per month, July 2012 to December 2013 ET single claims, monthly 14 03 14

So, if the number of claims by individual workers does not pick up further in the next quarter (January to March 2014), then the Ministry of Justice is likely to come under intense pressure, not least through further legal challenges in the courts (including UNISON’s appeal). Those quarterly figures are due for release on 12 June.

Mark that date in your diary.

* Note that it is the number of single ET claims by individual workers that most matters here, not the overall (or total) number of claims.  For the latter includes all the multiple claimants in the relatively small number of multiple claim cases, which are much less affected by the fees regime, not least because the fees paid per multiple claim case are capped at six times the fee for a single claim regardless of the number of claimants in the case, which can be as many as several thousand.  And a typical multiple claim case is an equal pay claim brought against a public sector body by a trade union on behalf of hundreds of its members.  

For example, in September 2013 there were 1,003 single claims, and 114 multiple claim cases involving a total of 13,359 claimants; so the overall number of claims was 14,362.  But in April 2013, there were 4,509 single claims, and 404 multiple claim cases involving 5,109 claimants; so the overall number of claims was 9,618. The number and size of the relatively small number of multiple claim cases therefore distorts the overall number of claims in any one time period, and is a misleading measure of the employment tribunal system’s workload.

Introducing YESS – because life’s too short to litigate

In this guest post, renowned employment lawyer Camilla Palmer explains what led her to establish new charity Your Employment Settlement Service (YESS).

Many bemoan the gender equality gap at work and wonder why it persists after 40 years of equality legislation.  My answer is: ‘It’s pregnancy stupid’ – at least a large part of it is down to pregnancy and maternity discrimination, whether conscious or unconscious, and the long hours’ culture.

For 20 years I have advised and acted for women whose careers have come to an end because their pregnancy has put pay to promotion, career progression and sometimes their job. Too many employers assume that women will not return from maternity leave and if they do, they will have lost their commitment. Common scenarios for returning women are:

  • Your maternity locum has been promoted so you will be reporting to him/her;
  • There is a redundancy situation. We assessed you in your absence and Yes, you are the only person being made redundant;
  • Your pay and terms and conditions will be the same when you return but we have re-allocated some of your responsibilities (the main ones as it happens),
  • We did not want to disturb you while you were away so we re-structured and appointed a new person above you.

Why is there such inequality, isn’t there a law against it?

If you were pregnant or on maternity leave, looking after at least one baby, would you find the time, energy, money to sue your employer to enforce your rights?

Of course, there are a lot of very good employers out there who try to ensure that women do not drop out of work because of punishing long hours or maternity absence. YESS wants to work with these employers and encourage more to follow their example.

Finding a new way

After nearly 20 years of litigating, often for those who suffered discrimination because of their pregnancy or maternity leave, I have decided that enough is enough.  Why?  Because I see too many employees damaged, one way or another, by the litigation process, which is costly, stressful, time consuming and often career suicide.

There has to be another way, particularly now we have high tribunal fees of up to £1,200 (since July 2013), and soon we will have mandatory early conciliation. While free Acas conciliation is good in principle, how does an employee settle a case without knowing if it has legs and how much it is worth?  Acas will not advise on the merits of a claim.

There is no easy fix but we hope that YESS – Your Employment Settlement Service will help employees to keep their job AND employers to improve their equality record.

What does YESS do? Early intervention and negotiation

We advise employees how to settle any dispute, or potential dispute, at the earliest opportunity.  We hope to help employees achieve their objectives, whether this is to stay in their job, perhaps on flexible hours, or negotiate an exit package if it is too late to save their job.  This will include:

  • Reading relevant documents
  • Meeting with the employee
  • Providing written legal advice
  • Negotiating with the employer
  • Advising on settlement agreements

We offer fixed fees once we have done an initial assessment of the situation.

Why YESS

  • We aim to achieve early resolution so avoid the time, stress, costs of litigation
  • We never litigate, so can have a more constructive dialogue with the employer
  • We offer affordable and fixed fees
  • We are a charity; any surplus will go to provide pro bono advice

YESS lawyers are highly experienced, seasoned litigators who have had enough of litigation. They include current and ex-employment judges who understand that many claimants have an unrealistic expectation of what the tribunal can do for them and who have seen the impact of tribunal proceedings on the parties.