The introduction of legal aid for employment tribunal cases in Scotland will
trigger claims from employees for similar rights in England and Wales, lawyers
are warning.
The Scottish Executive’s move is designed to pre-empt claims that the
absence of legal aid breaches the right to a fair trial under article 6 of the
European Convention of Human Rights.
"It can only be a matter of time before actions are brought in England
and Wales under the Human Rights Act challenging the absence of legal aid in
employment tribunals," said employment lawyers at Beachcroft Wansbroughs.
"Legal aid is, after all, already available for hearings in the EAT but
many complex points of law are thrashed out at an earlier stage."
The Scottish initiative has been dubbed a Chancer’s Charter and brought
vociferous opposition from the Scottish CBI, despite requirements that a case
must be "arguable" and too complex for the applicant to present
effectively before it qualifies for funding.
Less than a quarter of tribunal applicants are thought to have any legal
representation, despite the growth in no-win no-fee agreements.
A human rights case could be given added weight by recent statistics
suggesting legal representation has a dramatic effect on the outcome of
tribunal cases.
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Research by Incomes Data Services suggests a litigant under the notoriously
complex Disability Discrimination Act is more than twice as likely to succeed
if represented by a solicitor or barrister. Representation has been shown to
have a significant impact on compensation levels, too.
Moreover, proposals to allow tribunals to award costs of up to £10,000
"can only strengthen the arguments of an employee who alleges the lack of
representation is prejudicial to his or her interests," Beachcrofts’
lawyers added.
