Written by: Richard Dunstan
All was false and hollow
Pointy-headed policy wonks like me who have elected to bat for the have-nots of society lead a strange, and strangely monotonous, work life. For long periods – years, decades even – we do little more than bang our heads against various governmental brick walls, whilst producing a small mountain of painstakingly researched but little-read reports, articles and consultation responses. Elections and new governments come and go, but the brick walls remain just as impenetrable as ever.
Well, mostly. For, every now and then, we open our eyes to find that – eureka! – we have head-butted a little hole in the brickwork. The wall is still standing, for sure, but a minister has suddenly accepted that we do have a point, and has actually decided to do something about it. Woo hoo!
So, we get to change a little bit of public policy. It won’t change the world, but it might just make a crucial difference to some of the weakest in society. The last time this happened to me was in 2009, when – after more than five years banging my head against a very solid brick wall – the Ministry of Justice finally accepted that the non-payment of employment tribunal (ET) awards by unscrupulous employers is indeed a serious and widespread problem. A shocking four out of 10 awards go unpaid and, in those cases, the ET system has delivered empty justice.
Unfortunately, officials at the Ministry had no idea what to do about this, and their ministers made clear that, in any case, there was no ‘new money’ to spend on any policy solution. So, trying to be constructive, we came up with a solution for them: with just a few minor changes to secondary legislation, unpaid ET awards (and Acas settlements) could be enforced by the various firms of High Court Enforcement Officers (HCEOs). These – we were told, not least by the firms themselves – achieved success rates of 70-80% when enforcing High Court judgments. And, as they recovered their costs from the debtor in addition to the sum owed, there would be no cost to the taxpayer. It wasn’t an ideal solution, by any means, but it had to be better than the existing system, in which individuals were left to pursue their unpaid ET award or Acas settlement themselves, through the complex, costly and hopelessly ineffective County Court system.
Kind words, high hopes
So, in April 2010, the so-called ET and Acas Fast Track enforcement regime was born, with the minister even choosing to announce the birth at a central London CAB. Kind words, and high hopes, were expressed on both sides. And then I went back to banging my head on some other brick walls.
One year later, in March 2011, I thought it would be interesting to see how the new regime was doing. So I asked Ministry officials how many unpaid awards and settlements had been passed to the HCEOs, and with what outcome. After a few months of evasion, the answer came back: in the first year of operation of the Fast Track, a total of some 1,500 cases had been passed to the HCEO firms and, among completed cases, only 42.5% had been enforced. In the remaining 57.5% of completed cases, the award or settlement had been deemed unrecoverable, and the individual had paid the £50 Fast Track fee in vain.
Somewhat surprised by the 42.5% figure, I asked for the number of completed cases, so as to be able to put the percentage figure in perspective: it would only be meaningful if the proportion of all 1,500 cases that had been completed was substantial. A simple request, you might think, but, month after month, the Ministry came up with one reason after another for not providing me with the answer, and three Parliamentary Questions by MPs elicited only holding replies.
Finally, this week, the answer came: of the 1,295 completed cases for which the information is available, the award or settlement was fully or partially enforced in just 533 cases (41%). In the remaining 762 cases (59%), the award or settlement was deemed to be unenforceable. (Forty-nine cases remain open, and in 155 cases the Ministry is still checking the data).
Sold a pup
So, a somewhat disappointing success rate for the Fast Track, when set against the 70-80% enforcement rate cited by the HCEOs and Ministry officials in 2009. But in recent discussion with one firm of HCEOs, it has emerged that that figure is not what it seemed. That is simply the proportion of the total value of the debt that is recovered in those cases where some money is recovered, i.e. excluding the majority of cases in which no money is recovered. When the latter cases are taken into account, the enforcement rate falls to just 20%. Had we known that in 2009, we would not have suggested using the HCEOs to enforce unpaid ET awards.
In short, we were sold a pup, and our all-too-rare ‘policy success’ has proven to be, like all-too-many ET awards and Acas settlements, a hollow victory.
Maybe I should look for a more rewarding job. Making sandwiches, maybe.