2021ii1, Monday: Hack job.

A departure today from the normal routine of short thoughts etc. A colleague of mine, Natasha Joffe, has just been the subject of a piece of shoddy journalism. And I can’t let it pass. There aren’t that many barristers who used to be reporters, but I’m one of them; and this ought never to have passed the subs, let alone made it to publication. That it did reeks of an editorial hatchet job.

For tl;dr purposes, I’ll put it simply. The overall impression of this piece, that employment judges being appointed are somehow substandard, is simply wrong, and unfair to the individuals named. It tells a one-sided story, ignoring vital context, and thus gives a supremely misleading picture in all but one respect. That one thing is that the system is overburdened; but that’s not the fault of “inexperienced judges”. It’s the result of political decisions coming home to roost, to everyone’s cost.

The piece in question is in the Times. It accompanies an equally shoddy news story. (Update: a friend has provided links to both pieces which are OK for non-subscribers legitimately to access.) The main assertions in the piece, and the news story it accompanies, are as follows (note these are the Times’s assertions; my repeating them here doesn’t in any way mean I think they’re right or true):

1. The MoJ is rushing to appoint “inexperienced” employment judges to deal with a huge backlog. A “hearings free-for-all”, the paper calls it.
2. Employers are unfairly treated by tribunals, because they can’t recover their costs.
3. The backlog is because of a “surge in demand” since the 2017 Supreme Court case which ruled that fees were unlawful.
4. The surge is mostly unrepresented litigants in person, some of whose cases “seem extraordinary”.
5. The tribunal system should change its rules and throw out more cases, but is instead hiring inexperienced judges selected on the basis of lower standards.
6. The “lower standard” being no need for previous judicial experience. An anonymous “judicial source” said it was “quite a stretch for someone to be thrown in immediately as a full-time judge”.
7. Profiles of several of the “inexperienced” (and by inference unsuitable) new judges follow. One is Natasha Joffe (a former member of my Chambers). She started work in September 2020. The Times says she is “among inexperienced judges appointed with backgrounds that might appear more embedded on one side than the other in employment issues”, saying that “her brief biography by the MoJ contained no previous work as a judge but stated that she was called to the Bar in 1992”. It also notes that she wrote “The Mumsnet Rules”.
8. A number of other legal professionals are called out by name as well. One is snidely described as having previous judging experience limited to “choosing the winners of the Southport Writers’ Circle International Poetry Competition 2009”. Others appear to be unsuitable, in the Times’s view, because they were (like Natasha) authors, or because they were solicitors whose work was closely involved with trade unions.

Good lord. Where to start? Taking them in order:

1. “Inexperienced” is an idiotic word to use here. Employment judges often work as “fee-paid” (ie part-time) judges for a while before they go full-time. But fee-paid judges do the same work, in the same way. So everyone starts somewhere. There’s no difference in practice between a fee-paid judge and a salaried judge on day one. So the point is to look at whether they can do the job. And taking Natasha as an example: she’s been doing employment law for 28 years (and was in fact appointed in 2019). She knows her stuff. To call this a “hearings free-for-all” is a cute phrase, but utterly misleading. Not to mention stale beyond belief.
2. The costs-free environment is deliberate, and fairer than the alternative. If you’re suing your employer for a few hundred or a few thousand pounds, and you knew that if you couldn’t prove your case you faced costs of ten times that, you’d give up. Similarly, if you’re an employer, at least you can reasonably predict what it’s going to cost you to fight. You can insure against it, without the worry of the other side’s costs on top. And having just lost two cases for claimants in the past month (ouch), I think I can say that tribunals don’t routinely favour one side or the other.
3. The “surge in demand” since UNISON in 2017 is real. What the Times fails to make clear is that between 2013 and 2017, during the period when taking (say) a discrimination case all the way to a final hearing cost claimants £1,200 in fees, the number of cases fell by around 70%. That’s mostly not people jacking in nuisance cases. That’s real people, with real grievances, being denied justice because they couldn’t afford it. The sharp fall allowed the Government to ditch large numbers of employment judges. The backlog is because there aren’t now enough to cope with what is, in practice, largely a reversion to the mean. In other words: the mismatch between judges and cases is an artefact of political decisions, coupled with the effect of Covid. Not a surge in people bringing pointless cases.
4. Yes, there are lots of litigants in person, because there’s no legal aid. Legal aid helps weed out useless cases. No-one would deny that useless cases get brought. But often they get thrown out. Rule 37 of the Employment Tribunal Rules of Procedure allows a strike out (at the request of a party or at the Tribunal’s own motion). And any employment lawyer with tribunal experience will tell you that it does happen. Often.
5. The tribunal system can’t just change its rules. They’re statutory. So if they’re to change, the Government will have to do it for them. And a wholesale reinterpretation of those rules - say, to strike out more cases - would be the subject of appeals (and probably successful ones). Judges don’t decide to change interpretation on a whim, and no sane person would want them to.
6. As for the suggestion about “inexperience”: see 1, above. The blind quote could be anyone, from an usher to someone in the MoJ selling a line or flying a kite. (In other words: pushing out a quote to see how it’s received. If it goes down well, the minister can double down on it later. If it doesn’t, you can walk away from it unscathed.) And given that this situation arises largely from political decisions made in the past 10 years, of course it’s a blind quote. It’s notable that Dominic Kennedy, the “investigations editor” whose byline the news piece carries, hasn’t done anything to interrogate these issues.
7. Now for the hit job on Natasha. As noted above, she’s been in this game for 28 years. She’s represented both sides, as almost any experienced employment barrister will have done, so the suggestion she “might appear more embedded on one side” is wrong. She’s as qualified as any newly-minted employment judge, whether fee-paid or salaried. A quick web search would have brought up her professional CV. But why bother, when as a salaried judge, Natasha can’t answer back? The fact that she wrote a book based on MumsNet postings is neither here nor there, unless it’s intended to give the impression of someone unserious. The whiff of sexism is inescapable.
8. Much the same applies to others named. The fact that two of 59 newly-appointed judges have strong trade union connections is irrelevant; Dominic doesn’t seem to have scanned the list for close industry connections which, according to his approach, would suggest bias in favour of employers. I’m sure they’re there too. And as someone who appears before ETs on a regular basis, I don’t care. If a judge reaches a biased decision, we’ll appeal them; and the Employment Appeal Tribunal will eat them for lunch. But it’s really, really rare.

I wrote a lot of investigative pieces during my time as a reporter. This is how it usually works:

• You get a whiff of a story. Sometimes from a source, sometimes from open documents, sometimes from events.
• You pitch to your editor what you think the story’s going to end up being. Hopefully, they tell you to get on with it.
• You do research. You talk to lots of people. You get very frustrated with a few blind alleys. You test your hypothesis.
• Sometimes it checks out as you’d expected. Often, it changes in the process and you end up with a rather different story.
• You go back to your editor and explain where you are. Hopefully, they say: OK, changed story is still interesting. Go ahead and write it up. Sometimes they say: I don’t like the changed story. Spike it and do something else. Or sometimes - worst of all - they say: no, I wanted the original story. Write that one.
• If that happens, you’ve got a choice. Either you push back; or you find ways of adapting your research to fit the original pitch.

This piece smells of pushing a line. It would be so easy to include the context about UNISON and tribunal fees, the truth about how judges are appointed, the reality that a barrister with three decades of ET experience is absolutely standard material for a role as an employment judge.

My suspicion? That material might well have been in the early drafts. A decent reporter would have included them. But they made the story more nuanced, less impactful. So they probably got taken out in the editing process. So as to make for - as one former editor of mine used to put it - “a better top line”.

This hack job isn’t victimless. It smears the reputations of professionals who can’t talk back. It paints an inaccurate picture of a system which - and this is the bit the Times gets right - is genuinely in trouble. There aren’t enough judges. There isn’t enough tribunal space. Tribunal systems are archaic - one of the reasons so many cases got postponed for so long (from April to September very few final hearings took place; that’s a half-year lost) was that they’re still very paper-based, and the electronic systems wouldn’t support remote working for a long time. And that’s the result of the huge cuts which tribunal fees allowed governments to make, and the fact that they’ve never yet been properly reversed.

The result, even before Covid, was huge delays. Between September 2019 and March 2020 I had three multi-day cases pushed back as much as a year because judges weren’t available - sometimes on the day. That doesn’t just hurt claimants. It hurts employers too. You’ve had to take critical staff off the front line to sit around in a tribunal room, and then they all have to go home? And you have to do it all over again? That doesn’t do either side any good.

You can infer this from Dominic’s piece. Sort of. But it wouldn’t produce the “know-nothing judges in hearing free-for-all” headline the Times seemed to want. A better top line, wasn’t it?