Legal aid changes could prompt rise in ‘hopeless’ tribunal cases

Employers could face a rise in “hopeless” employment tribunal cases if Government plans to reform the legal aid system go ahead, an employment law specialist has cautioned.

The warning follows a Ministry of Justice consultation published yesterday (15 November), which proposes a shake-up of the current system of legal aid in England and Wales.

Under the plans, legal aid would be scrapped for employment matters, including legal help for getting advice in advance of employment tribunal proceedings unless they are discrimination cases.

Legal aid for representation for employment matters heard outside the tribunal system and in appeals to the Employment Appeal Tribunal would also be removed.

According to XpertHR, legal aid is not available for representation in employment tribunals in England and Wales but there is some “legal help” for getting advice in advance of employment tribunal proceedings.

But XpertHR employment law editor Stephen Simpson warned that preventing potential employment tribunal claimants from getting legal aid to pay for specialist advice could result in more claims “based on hopeless grounds where the individual has no realistic prospect of success”.

He told Personnel Today: “This seems as though it might work directly against reaching the holy grail of reducing the number of employment tribunal claims and the coalition Government’s stated aim of reducing the ‘bureaucratic burdens which increase costs and hassle’ for employers and, especially, small businesses.”

Employment lawyer Darren Newman, agreed: “Without the legal help that’s currently available, many employees will simply put in a claim to the tribunal because they have had no access to proper independent legal advice that could explain to them why their claim could not succeed. For that reason, taking away such legal help could be counter productive.

“On the other hand, since legal help will still be available in discrimination claims, that might simply persuade more people to couch their complaint in terms of discrimination. There isn’t the straightforward divide between discrimination and other claims that the Government seems to think.”

The Proposals for the Reform of Legal Aid in England and Wales consultation paper states: “The proposals represent a radical, wide ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for those cases in which legal advice or representation is justified.”

The consultation runs until 14 February 2011.

Also, XpertHR provides summaries of recent employment tribunal rulings.

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