Legal aid for employment tribunals - at last

In the season when directors’ bonuses are a more familiar target for “fat cat” clichés, it was a convenient distraction for the Scottish Confederation of British Industry to have the opportunity to provide an indignant reaction to news of the Executive’s decision to make legal aid available in employment tribunals under limited circumstances.

Denouncing the move as a “chancer’s charter” they rallied against a decision destined to “encourage spurious tribunal cases” which could disadvantage Scottish businesses competing against those in England and Wales where similar regulations don’t apply.

Sections of the press also reverted to type. Picking up these themes under the banner “The true cost of a chancer’s charter”, the Daily Mail carried an editorial condemning “politically correct nannying” which can “only cause Scotland’s legal aid bill to spiral out of control”. “Predictably”, they noted, “the move has been welcomed by lawyers, who scent a dripping roast”. “Scotland is ill served by this latest pandering to the compensation culture”, they concluded. A commentary piece in the same paper later that week began “Scotland’s fat-cat lawyers were rubbing their hands with glee this week…..claims will rocket once every work-shy incompetent who gets his jotters realises he has nothing to lose”.

The Scotsman followed suit. “This extension of legal aid to cover employment tribunals opens up a veritable can of legal and political worms…funding people to undertake more tribunal cases may well open the floodgates.”

Throughout the coverage little mention was made that the Scottish Legal Aid Board is in place preventing frivolous actions, with only the most complex employment cases being eligible for funding. Nor did they see fit to try and understand that the intricacies of employment law are now such that in most cases lay people could not be expected to adequately represent themselves – which is why the Executive took advice that continued refusal to grant legal aid would almost certainly breach the article 6 right to a fair hearing.

Scott Cownie of Brunton Miller in Helensburgh, who picked up the Gerrie case, which has been instrumental in forcing the Executive’s hand, when his predecessor John Carruthers commenced devilling, said: “I am aware that various employers groups have thrown their hands in the air in response to this development. The journalist who reported that sacked employees now have the right to legal aid for tribunals should maybe have consulted a lawyer for informed comment before going to press.

“Employees don’t have the right to legal aid. Employees now have the right to apply for a type of legal aid. There is a condition in the regulations which states that assistance by way of representation will only be granted if the case is arguable, if it is reasonable in the particular circumstances of the case that assistance by way of representation be made available, and that the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person.

“That last condition will weed out many applications. In many ways it makes the qualifying criterion more stringent than civil legal aid and other instances of ABWOR, where the applicant just has to demonstrate a stateable case, irrespective of its complexity.Criminal applications invite comment on the applicant’s ability to understand the proceedings. But it is simply a factor, not a qualifying criterion.

“From a practice point of view, agents will have to assess complicating factors at an early stage in addition to assessing the merits of the case.There will be scope for imagination.”

Jill Bell, employment lawyer with Anderson Strathern, said: “Advice and Assistance is already available to those requiring legal advice in connection with their employment related problems. However, this can only take matters so far – most importantly not into the tribunal hearing itself. This leaves the applicant taking his case forward unrepresented and often facing the solicitor for the employer. The “equality of arms” argument is therefore a strong one and – as the Scottish Executive appears to have recognised in the face of a number of Human Rights challenges of the current system – favours the granting of legal aid for applicants for employment tribunal hearings.

“The intention of the regulations would seem to be to preserve the grant of legal aid for cases not requiring consideration of a substantial question of law – meaning that many applicants with perfectly good (but not hugely complex cases) will still be left in the main without professional representation. It also means that they will still be left staring across the tribunal room at the employer’s solicitor. If that is the case, then a “chancer’s charter” it is not.”

Gerry Brown, Convener of the Society’s Legal Aid Committee, said: “The introduction of legal aid to employment tribunals is a welcome step towards extending access to justice and equality of arms.

“These regulations are a direct result of the introduction by the Executive of the Human Rights act. It is therefore wrong to suggest that this is a human rights gravy train or a lawyers’ charter as has been wrongly represented in recent hysterical media coverage.”

Ken Hogg describes the background to the Executive’s decision to make legal aid available in restricted circumstances for employment tribunals

I have been preparing for and appearing in employment tribunals since their inception in 1978 and during that time it has always seemed to me that an anomaly existed in respect of the failure to provide Legal Aid for representation in the tribunal. The employee was faced with a bill to have the benefit of a solicitor assist in the case. Many could not afford such a cost despite having a good case and from time to time it was my view that justice was not being seen to be done. In cases where an employee did proceed with the benefit of a solicitor it was usually because the employee saw it as a point of principle.

The arrival of the Scotland Act and then the implementation of the Human Rights Act seemed to provide the perfect opportunity to test whether legal aid might become available as a result of the change.

The framework of employment law was created in the early seventies in a much different climate of employer- employee relations. The employment tribunal was to be an informal tribunal where both employer and the employee would be able to resolve their difficulties in a friendly manner without the assistance of lawyers. For that reason the tribunal was set up as an inquisitorial body with power to the bench to become involved in asking any question they deemed to be relevant. Two things however militated against that approach. Lawyers and membership of the European Community.

Lawyers made an appearance to assist employers usually against the perceived threat of union involvement and once the dam was breached then some employees felt the need to be assisted by their own lawyer.

European law however made an even greater impact turning what had once seemed a very simple area of law into the most complex and rapidly changing arena. As the trickle of legislation has turned into a flood so the prospect of an individual appearing at tribunal to argue for example a Transfer of Undertakings point has become more and more daunting for the individual. Such complexity has led to the inescapable conclusion that at some time legal aid would have to be considered for those who might qualify and who merit legal assistance in the presentation of the case.

It could have been no surprise when an attempt was made to raise the matter as a devolution issue at an employment tribunal. Gerrie v M O D was the first attempt to litigate the issue. The point was raised as a preliminary point and debated before a single chairman. Rather crucially however the issue was not intimated to either the Scottish Executive or the Legal Aid Board. The point was still lost at the hearing, the rationale being the informal nature of the proceedings and also the inquisitorial nature of the employment tribunal militated against the necessity of legal assistance and thus the necessity of legal aid.

Article 6 of the European Convention on Human Rights details that everyone has a right to a fair and public hearing. The argument for legal aid was that if a lawyer assisted one party to the hearing and the other was not so assisted then it could not be a fair hearing. In simple terms there would not be equality of arms. It would be even worse if one party wanted to be represented by a lawyer and was prevented in being so represented by the inability to afford the cost.

I took the stance that in each case where my firm represented an applicant who was in receipt of legal advice and assistance it would be our professional duty to advance the case for legal aid as a ‘Human Rights’ point. Each case which qualified had a statement added to it seeking to raise the issue which was sent to the tribunal office asking to have it added to the already stated grounds or if a new case was being submitted then the ground was added at the start. Once accepted by the tribunal it was served on the opponent and also intimated to the Executive by the tribunal office.

Reaction from opponents was swift ranging from sist the case until the Gerrie v MOD case was complete to the statement from English agents that we were wrong both in concept and also in procedure it not having occurred to them that procedure might be different north of the border. I was just on the point of beginning to discuss further procedure with the tribunals office when to my surprise the Executive intimated to me that the intention was to attempt to make some type of legal aid available to allow representation at tribunals. This of course took the ground right from under the point completely.

I was delighted - the ability to obtain access to justice is in my view an inalienable right and the ordinary individual now would have an opportunity to be represented in a forum where previously such opportunity has not existed.. The ability to be represented is a major step forward for an advanced legal system such as Scotland. I was therefore very concerned that in resultant press coverage I saw a suggestion that this would allow ‘chancers’ to go to tribunals. At that stage the person making such ridiculous comment had no access to the regulations, which in due course will allow legal aid and seemed to imply that in some fashion the tribunals would be swamped by spurious cases. Such ill-advised comment may have been what the press wanted. I expected better. The obvious slur on those of us advising applicants was to be expected but more importantly the thought seemed to be that legal aid would be available to all. Had the party making comment taken the trouble to be properly advised they would have of course found out that was not, and is not, the plan.

In my view it can only be a matter of time before tribunal regulations are changed to allow a much higher penalty for what are seen as frivolous claims and also a much higher possible liability for expenses for a list claim. In fact in the course of writing this article that has come about. Only time will then tell what effect all of this will have on the procedure to be adopted by a tribunal as I also suspect that a much more proactive role will be adopted to deal with claims which are seen to be without merit at a much earlier time.

So what is the plan for legal aid? Regulations will come into force on 15 January 2001 and if all goes well will provide that a party who qualifies for legal advice and assistance on financial grounds may be eligible for representation if certain criteria are met. At present an application to tribunal can obtain legal advice and assistance for the preparation of the case and an application can be made to allow the initial limit to be exceeded. At present if a claim is successful then the applicant is liable to repay the sum obtained by the solicitor from the Legal Aid Board from an award made by tribunal. It is likely such requirement will be removed from the new regulations.

The Board will however have to be convinced of certain things before allowing an extension of the certificate for representation. First the case must be arguable. Presumably the opinion of the solicitor will be accepted on this point. Second it must be reasonable in the particular circumstances of the case that assistance by way of representation be made available. What that means only time will tell. Presumably the Legal Aid Board will issue some form of guidance to allow us all to interpret that statement. And third the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person.

The last paragraph has an additional section added to allow for interpretation. That discloses the factors to be taken into account by the Board in determining whether the paragraph regarding complexity applies. Such factors are (a) the determination of the issues may involve procedural difficulty or consideration of a substantial question of law or of evidence of a complex or difficulty nature. They are also listed as (b) the applicant may be unable to understand the proceedings or to state his own case because of his age, inadequate knowledge of English, mental illness, other mental or physical disability or otherwise.

These factors are not listed as alternatives or in addition to each other. I say that quite advisedly as I am sure this will immediately provide the first area of conflict with the Board in regard to how these regulations will be applied.

So there lies a brave new future for us all. There can be no doubt that legal aid in some form will be an advantage to those who may have in the past been disadvantaged. The real skill will now be to work within the new framework and prove wrong those sceptical members of the public who will attempt to establish that the whole exercise has been nothing more than another area where clever lawyers have used legislation to their advantage and profit. It is for those of us who will be involved in the use of the funds from legal aid to show that the public at large will receive the full benefit of the skills available to them by such representation. Justice cannot and never should be cost driven or profit led.

Ken Hogg is a partner with Allcourt solicitors, Livingston