Through the past year the Haldane Society, along with many others, has been doing everything in our power to resist the Coalition’s attacks to legal aid. Employment law has been an important if subsidiary part of this story. Even before the Legal Aid and Sentencing and Punishment of Offenders Act 2012 (LASPO) was passed there was no provision for representation at the Employment Tribunal to be funded by legal aid. With the Act, things get worse: legal help is removed from unfair dismissal and wages claims and remains only for discrimination claims.
But for the claimant-focussed employment solicitor contemplating the ruins of her career, LASPO is far from the worst culprit. April 2012 saw the extension of the qualifying period for unfair dismissal from one to two years, the removal of Tribunal panellists from unfair dismissal cases (now heard by a sole Judge) and the doubling of the amount of costs orders (a favourite threat of Respondent representatives to unrepresented Claimants, especially ones with a strong case).
The Coalition’s plans for employment law remain subject to refinement but we can anticipate the weakening of the employee’s protections on transfer of employment, the emasculation of the employer’s duty to consult in collective redundancies, and fees of between £400 and £1500 for Tribunal hearings (in a jurisdiction which has never required fees) to be paid by Claimants, not employers.
What, if anything can be done? The primary task must be to encourage voters to complain in large numbers. The Haldane Society is playing its part, by touring trades councils and trade union branches, speaking to the proposed changes, and attempting to rally the sort of public revulsion that is necessary to cause the Coalition to think again. Indeed if there any trade unionists reading this who would like to invite us to speak at a meeting, we would be happy to do so. You can approach the Society via our Secretaries, email@example.com and firstname.lastname@example.org.
It may be that some senior trade unionists are at last starting to consider a collective response. If so, this is not before time. Not only are individual claimants in the Coalition’s firing sights, so undoubtedly are the unions themselves.
Most trade unions have a legal budget, which has to cover more than just Tribunal claims, of around £10 per member per year. If it would take 150 members’ contributions to cover the cost of just issuing a claim, let alone doing initial work on it, or still less representing the member at a full hearing, then we are reaching the point where unions might no longer be able to offer representation to their members.
For many years, unions have marketed themselves to potential members on the basis of benefits including protection, amounting to legal insurance, where a worker is dismissed. But the Coalition’s reforms will price unions out of the game.
One question we are often asked is whether any of these measures, particularly fees, could be challenged by judicial review? On the face of it yes: the fees are high, and will have a discriminatory impact. Unions have co-funded JRs before (as in 2003, over the Sexual Orientation Regulations). But time is running out.
A version of this article first appeared in the July 2012 edition of Socialist Lawyer, the magazine of the Haldane Society of Socialist Lawyers