New employment tribunal statistics released this week by the Ministry of Justice, in reply to a parliamentary question by Caroline Lucas MP, show that the combined number of new single claims and new multiple claim cases – the most meaningful measure of the workload of employment tribunals – fell significantly in 2011/12, for the second year in a row. And, at just 63,500, it was a whopping 19 per cent down on 2009/10, when it peaked at 78,700.
Annual statistics for the entire tribunal system, released by the Ministry of Justice at the end of June, had already revealed a 15% fall in the headline number of ET claims in 2011/12, from 218,000 to 186,300. But that headline measure – the one most commonly used by government ministers and mainstream journalists – is highly misleading, as it includes both the number of single claims made by individual workers, and the total number of worker claimants covered by ‘multiple claim’ cases, in which two or more workers claim against the same employer on the same (or very similar) grounds.
Such multiple claim cases can and often do involve hundreds, thousands or even tens of thousands of workers, each one counted as a ‘claim’ in the headline measure, but the ET system may need to determine only one or a handful of ‘lead’ cases.
In other words, it’s the number of cases, not the number of claims, that matters. Last month, in his oral evidence to the committee of MPs examining the Enterprise & Regulatory Reform Bill, the Chair of Acas, Ed Sweeney, confirmed that Acas uses the combined number of single claims and multiple claim cases to measure its own workload: ‘for instance, if we have an equal pay case with 300 [claimants against an NHS Trust], we class that as only one case because that is only one conciliation’. It is not clear why the Ministry of Justice and HM Courts & Tribunals Service persist with using a misleading measure for the ET system.
Whatever, it is now clear that, by any measure, the trend in the number of new ET claims is now strongly downward. Which begs the question: why all the panic? Since 2010, government ministers have justified a raft of anti-claimant reforms to the ET system – the introduction of substantial claimant fees, 100% increases in the sums that can be awarded as costs or required as a deposit, and a doubling of the qualifying period for legal protection against unfair dismissal – by reference to supposedly spiralling and ‘record’ numbers of ET claims.
However, as the chart below shows, the real story is one of a steady downward trend in the number of new cases since 2000, interrupted only by a (relatively modest and entirely understandable) rise in the immediate aftermath of the 2008 economic crisis.
So, please, let’s not hear any more about employers being frightened to death by spiralling numbers of ET claims. It’s the economy, stupid!
Richard Dunstan is a policy wonk who has worked for Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK.