Member Article

Removal of legal aid from employment litigation examined

Head of employment at Thomas Eggar, Catherine Wilson, looks at the removal of legal aid from employment litigation, following this month’s comments from Lord Neuberger.

Lord Neuberger made headlines earlier this week (5 March 2013) when he expressed alarm at the impact of legal aid reforms due to come into effect on 1 April 2013. Lord Neuberger warned that the cuts could make people feel that they could not access justice and this in turn may lead them to “take the law into their own hands”. One of these reforms under the Legal Aid Sentencing and Punishment of Offenders Act 2012 will remove new employment law cases in England and Wales from the scope of legal aid except in relation to discrimination cases. So what will these changes mean in practice and why should employers be concerned?

Legal aid for employment advice has been restricted for many years. Many of the landmark decisions could not have been brought without the support of the trade unions, the Equality and Human Rights Commission and their predecessor bodies such as the Equal Opportunities Commission and Commission for Racial Equality and, much hated by government, so called “no win no fee” lawyers notably in the context of equal pay. The importance of even limited legal aid for employment claims must not however be overlooked.

Legal help in relation to employment matters is currently available to those claimants who meet both a merit and financial test under the Legal Help Scheme (previously known as the Green Form Scheme). There is also full legal aid available to cover representation at the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court. To put this in contest some 20,203 employment cases were started under the legal aid scheme during the course of 2011/12.

Discrimination claims will remain within scope. However whereas at May 2012 there were some 179 offices franchised with the Legal Services Commission to provide employment law advice, going forward, the actual service will be provided remotely through telephone or online advice via only three nominated providers in Sheffield, Manchester and on Merseyside. Claimants will only receive face to face advice where the provider considers it is impossible for them to be advised over the phone or by email presumably in circumstances of particular disability such as severe learning difficulties. Employers encountering individuals who are struggling to manage their own discrimination claims may find it helpful to be aware of this admittedly very limited service.

The majority of employees will have no access to legal assistance. However, viewed against the general climate of austerity and budgetary restraint, should the retention of legal aid for employment advice be treated as a special case?

The answer must be a resounding yes. Employment lawyers already see a steady stream of employees seeking employment advice and specifically representation at tribunal hearings without the financial means to pay for support and advice. The removal of legal aid will only increase this to a flood as there must be serious doubts given funding cuts elsewhere as to whether ACAS or the CAB and other advice agencies can really meet the shortfall.

The costs will be felt in both human and financial terms. If people cannot access professional advice about their case then more people will pursue cases which have little or no prospects of success. There will also be an increase in the number of unrepresented claimants which will also lengthen hearing times as they absorb assistance from the Tribunal staff and Judges alike. Such cases will also increase costs on both the Tribunal Service and employers alike. The introduction of fees later this year for issuing tribunal claims in the Employment Tribunal and for the hearing itself seems likely to provide a further limitation on access to justice.

It is far-fetched to allege that these changes are a back door means of introducing the Beecroft reforms and “employment at will”. The retention of a general well-funded advisory service even if provided remotely by centralised providers would, in the view of the writer, allay some of the concerns as well as ensuring greater parity and fairness. However, there is little doubt that these reforms, in the absence of even a limited change of heart, will bring an already creaking system closer to collapse!

This was posted in Bdaily's Members' News section by Thomas Eggar .