Monday 1st April 2013 at 4:40pm

Cuts to Legal Aid in employment law: sadly not an April fool’s day story

The most important change to employment law which takes effect from today is the one which has had the least coverage – the near-abolition of legal aid in employment cases.

The reason it has had so little coverage is that most lawyers who practise in employment law (and whose practices are viable) have a majority Respondent business – they chiefly represent employers. There is very little reason for an employer to ask whether the person suing them is being represented pro bono, on a win no fee agreement, by a trade union, or on legal aid. Moreover, the sorts of clients who are most likely to be on legal aid – unemployed workers, without union representation, and with low-value claims, generate the sorts of cases that are least likely to end up taking a lengthy amount of court time or appearing in legal reports, etc.

The rule change is as follows: until today, it was (theoretically) possible to get “legal help” (ie assistance with drafting documents, etc, but not “representation”) in almost every category of employment tribunal claim. Representation was availablle for appeals to the EAT and higher courts.

As of today, legal help remains available, but only for discrimination claims (ie claims under the Equality Act – not, for example, union discrimination cases) and for traficking cases (of which there are very few in the system indeed).

On appeal, representation remains theoretically available.

The government estimates that the cut in legal aid in employment law will reduce its total spend on this category of case by around 76%. There will of course be knock-on effects elsewhere. No-one especially believes that workers, unable to get legal help with wages claims, will stop bringing them. Instead they will be heard by a judge, with the claimant unrepresented.

The recent words of Sir Alan Ward in Wright v Michael Wright Supplies Ltd & Anor [2013] EWCA Civ 234, reflecting the exasperation of one previously important voice in the legal system, ie the senior judiciary, in response to the rule change:

“What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved. Judge Thornton did a brilliant job in that regard yet, as this case shows, that can be disproportionately time-consuming. It may be saving the Legal Services Commission which no longer offers legal aid for this kind of litigation but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented. With more and more self-represented litigants, this problem is not going to go away. We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”

More details about how legal aid is changing here here.

Realistically, it is likely that very few solicitors indeed will continue to offer employment law on legal aid; the key difficulty will be finding a solicitor who can act for you in cases of this sort.

Also changing this month are the rules on:

Redundancy: Where 100 or more employees are involved, the minimum period for collective redundancy consultation is reduced from 90 days to at least 45 days before the first dismissal occurs.

SSP, SMP, etc: The weekly rate of statutory sick pay increases from £85.85 to £86.70. The weekly rate of statutory maternity, paternity and adoption pay increase from £135.45 to £136.78.

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Thursday 1st December 2011 at 10:46am

What about the workers?

Over the last twelve months the Coalition government has been developing its plans for law in general and Employment Tribunals in particular.

First of all, it plans to reduce the public’s entitlement to legal aid. Many cases which get legal aid now will not from autumn 2012 (for example non-asylum immigration cases, most custody disputes after relationships break down, and most claims by tenants for housing disrepair). Civil legal aid will be restricted to the very poorest. And claimants will only get legal aid by applying through a call-centre rather than by speaking to a solicitor directly (there is no purpose to the call-centre other than to give claimants an additional hoop to jump through, the government’s hope being that most people will give up rather than push on with their claim).

Second, the government intends to reduce the number of personal injury claims, including claims for injuries at work, by making it much harder to fund these fees through no-win no-fee arrangements. In future, the claimant lawyer’s “success fee” will have to come from their own side’s damages rather than at present from the losing party. This change will make it harder for people to take their cases to court, as, in most injury claims, the potential awards are relatively modest while the lawyers’ fees are relatively high (Fees are high incidentally, not because lawyers are the fat cats that the press makes out, but because if you sue a large company it will use every device in its power to stay or defeat the case, and you cannot expect to win claims against rich defendants without spending many hours preparing them).

Third, the government will limit access to Employment Tribunals by requiring claimants to have been in employment for longer before they can bring a claim (two years for unfair dismissal, in contrast to the present one), by making it dramatically easier for employer’s to get costs when workers lose their case, and by introducing punitive “issuing” and “hearing” fees of around £1250 per claim.

The right to claim unfair dismissal was introduced in the Industrial Relations Act 1971 by Edward Heath, as part of legislation which attempted to prevent unofficial strikes by requiring the strikers to attend industrial courts. The idea inspiring the Tribunal system was that by taking individual disputes away from industrial bargaining, and making them the preserve of the courts, unions would be weakened. The present attacks on the Tribunal system only make sense if they are seen as the giving up of this long strategy in favour of a simple concentration on cuts at any cost.

The individuals who make it into the press reporting of Tribunal cases are usually wealthy individuals (bankers, sportsmen and women) bringing multi-million claims for discrimination. Claimants of this sort will not be inconvenienced by the government’s plans. But such claimants are untypical of the Tribunal system. Around three-fifths of all workers who bring cases succeed. The median award is only around £4,000.

The proposals will mean that tens of thousands of low-paid workers, the majority of them recently dismissed by their employer, and who have strong claims, will simply not bring them. Cost will be saved; but justice will not in any respect be served.

(This article was published in the December 2011 issue of Labour Briefing.)

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