In 2010, under pressure from a series of Citizens Advice reports and faced with a research finding that half of all ET awards go unpaid, the Ministry of Justice introduced the so-called Fast Track enforcement regime. Last week, it quietly published a review of the Fast Track’s first two years. The report is a masterpiece of obfuscation and misinformation. And that tells us all we need to know: the Fast Track is a failure.
Between 2004 and 2008, in no fewer than three reports – Empty justice (2004), Hollow victories (2005) and Justice denied (2008) – Citizens Advice highlighted the widespread non-payment of employment tribunal (ET) awards, and the difficulty faced by individual workers in trying to enforce an unpaid award through the complex, costly and time-consuming County Court system. Using case studies from the advice work of Citizens Advice Bureaux, we showed how rogue employers could easily drag out and frustrate such enforcement action, leaving the worker empty handed.
In response, the Ministry of Justice reluctantly conducted its own research on the issue. Eventually published in May 2009, this research found that 49 per cent of all ET awards were going unpaid in the first instance (i.e. without the taking of enforcement action in the County Courts). This shocking finding led the then Labour government to introduce, in April 2010, the so-called ET Fast Track enforcement regime, under which workers can pay a fee of £60 to have their unpaid award enforced by one of the various firms of High Court Enforcement Officers (HCEOs).
However, the creation of the fast track process has not solved the problem. Only about one in five of those with an unpaid award pay the £60 fee to access the process, and the HCEOs have managed to enforce only 42 per cent of those unpaid awards that have been referred to them. In the words of one CAB adviser, ‘whilst the fast track is better than the County Court system, it falls short especially with small limited companies that are good at avoiding any liability, and with those that do not want to pay’.
This is very well illustrated by some brilliant advice and social policy work by Eastbourne CAB. During 2012, the CAB advised no fewer than 31 current and former employees of a local contract cleaning company, Express Construction Cleaning Ltd. All 31 clients were owed wages by the company, and some had seemingly been paid below the National Minimum Wage. With assistance from the CAB, nine of the workers went on to issue an ET claim, and all nine won awards (for unpaid wages) totalling £15,707. But the clients have not received a penny of their awards. One of the nine even paid the £60 fee to access the Fast Track, but the HCEOs were unable to recover any money from ECC Ltd. Yet the company continues to trade, and – despite vocal support from the local MP, Stephen Lloyd, and a report on regional BBC TV news – in the past two weeks the CAB has seen a further five former employees of ECC Ltd, all owed wages by the company.
Not that you will find any mention of this in a report on the Fast Track’s first two years, quietly published by the Ministry of Justice last week. The report is a masterpiece in obfuscation and misinformation. It creates an abritrary and meaningless ‘benchmark’, and then – surprise surprise – finds that the Fast Track’s performance surpasses that ‘benchmark’.
Sadly, that very obfuscation (and the effort that must have gone into it) tells us all we need to know: the Fast Track is a failure. Read the report closely enough and you will find that, of the 2,224 unpaid awards referred to the HCEOs in the Fast Track’s first two years (excluding unresolved cases), the HCEOs were able to successfully enforce only 935 (42 per cent), of which 75 were only enforced in part. So 1,289 workers paid the £60 fee in vain. And the Ministry was happy to take £77,000 in fees from these workers – all for nothing.
Maybe I should have titled this blog post ‘money for old rope’.
Richard Dunstan is a policy wonk who has worked for Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK.