The new north-south divide

Scottish
employment tribunal applicants can now apply for legal aid to fund proper
representation. David Morgan looks at the implications for the already creaking
claims system – and whether England and Wales will be forced to follow suit

The availability of legal aid for representation at employment tribunals has
for some time been conspicuous by its absence in Scotland; perhaps
unsurprisingly, given that at their inception in 1978, tribunals were envisaged
as an ostensibly informal method of settling workplace disputes. Legal aid has
been available for a number of years for Scottish employees requiring advice
and assistance prior to the advocacy stage at employment tribunal. Indeed, it
has also been available for representation in employment litigation at the
Employment Appeal Tribunal and the higher appellate courts (as it is in the
rest of the UK).

Now, against a background of some 10,000 employment tribunal applications
having been lodged in Scotland in 2000, compared with just over 4,000 in 1990,
a form of legal aid has been extended to applicant employees at first tribunal
hearings.

On 15 January, new regulations were introduced amending the existing regime
of legal aid set out in 1997. In the 10 days following, it was reported that between
40 to 50 applications for legal aid at tribunals were lodged with the Scottish
Legal Aid Board.

Tribunals in Scotland are already stopping claims in their tracks to allow
applicants to apply for financial assistance for forthcoming hearings. And as
the new rules proceed under the advice and assistance scheme, rather than legal
aid proper, the Legal Aid Board will not entertain objections from respondent
employers to the granting of legal aid, as is commonplace in applications for
"civil" aid.

The announcement of the regulations’ proposed content in November last year
met with a chorus of disapproval in the national press, with ill-informed
reports labelling them a "Chancer’s Charter" that would encourage
claims by "work shy incompetents" and send the Scottish legal aid
bill spiralling out of control. And many businesses in Scotland have complained
that it puts them at a commercial disadvantage in relation to their
counterparts south of the border, leaving them susceptible to an increased
number of tribunal challenges, with obvious time and cost implications.

In the wake of such hysteria, it is important to look at the true position
and discuss the likely impact of the regulations upon employers.

Who may be granted legal aid?

There are, of course, already a number of standard tests an applicant must
pass for legal aid even before considering the new regulations. Broadly
speaking, if he or she has more than £1,000 in savings, he or she will fail the
test at the first hurdle. He or she will also fail if his or her partner has
earnings slightly above the minimum wage.

Add to this the fact that legal aid will only be available for
representation at tribunals if the Scottish Legal Aid Board is satisfied that:

– The case is arguable.

– It is reasonable in the particular circumstances of the case that
assistance by way of representation be made available.

– The case is too complex to allow the applicant to present it to a minimum
standard of effectiveness in person.

These requirements are more stringent than the standard test for civil legal
aid, which requires an applicant simply to put forward a stateable case,
irrespective of complexity. It becomes immediately apparent that applicants to
employment tribunals seeking legal aid will have a number of hurdles to
overcome.

The opinion of the applicant’s solicitor is likely to carry some weight in
determining whether a case is arguable. The effect of the second requirement
will largely depend on how the Legal Aid Board chooses to interpret it. The
board is expected to issue guidance in the near future to clarify the approach
it will take.

The third requirement is perhaps the most controversial. Again, much will
depend on the approach the Legal Aid Board adopts, although the regulations do
provide that factors to be taken into account in determining the complexity of
a case shall include:

– Whether determination of the issue may involve procedural difficulty or
consideration of a substantial question of law, or of evidence of a complex or
difficult nature.

– Whether there is doubt an applicant is able to understand the proceedings
or to state his or her own case because of his or her age, inadequate knowledge
of English, mental illness, other mental or physical disability, or otherwise.

These two factors are neither mutually exclusive nor cumulative. The latter
has been particularly widely drafted, perhaps intentionally given the plethora
of complex legislation with which an applicant employee may be faced.

The Legal Aid Board has therefore been granted great discretion in this area
and the way in which it exercises this in practice will have a direct and
significant effect on the number of cases funded. Given that the Scottish
Executive has apparently set aside only £200,000 per year to cover legal aid
awards for employment tribunals, it seems certain that weaker claims will have
to be filtered out at an early stage.

Why now?

This was a pre-emptive strike on the part of the Scottish Executive. It has
responded to the argument that preventing an employee access to a lawyer for
representation at an employment tribunal may fall foul of article 6 of the
European Convention on Human Rights, which provides the right to a fair and
public hearing. This right is now enshrined throughout UK law in the Human
Rights Act 1998.

The executive was, no doubt, also mindful of the pending challenge to the
old regime in the Employment Appeal Tribunal sitting in Edinburgh (Gerrie v
Ministry of Defence). The overriding argument is one of "equality of
arms", namely that deserving applicants should be entitled to improved
access to justice through legal representation at tribunal, thereby ensuring a
fair hearing.

The case has yet to be decided, but the issue has now largely been dealt
with in the interim by the executive.

Are similar regulations likely to be implemented in England and Wales? The
recent reporting of record rises in tribunal claims in England and Wales (14
per cent from 1999 to 2000) seems to have put plans to do so in jeopardy. The
Lord Chancellor has indicated he would like to introduce a similar regime but a
final decision is not expected until Easter after the conclusion of an inquiry
by Sir Andrew Leggatt, a former court of appeal judge.

In the interim, there is a clear imbalance between the two systems. There is
a strong possibility that this will lead to a Gerrie-type challenge in England
and, or, Wales if changes are not forthcoming. It may transpire that such a
move is forced on England and Wales through human rights challenges in the courts
and tribunals.

The backlash

It seems inevitable that employees armed with the knowledge that they might
be entitled to legal aid and buoyed by the confidence legal representation will
provide, will be more inclined to raise proceedings against employers. But the
increased burden on the tribunal system is unlikely to be as dramatic as
recently publicised. Indeed, the regulations came on the scene shortly after a
series of proposed amendments to employment tribunal procedures, which are
expected to come into force throughout the UK this spring. These will introduce
new sanctions to weed out spurious cases, such as raising the ceiling on costs
payable for frivolous and vexatious claims from £500 to £10,000 to punish
unreasonable litigants; increasing the deposit an applicant must lodge at the
tribunal to pursue a weak case following a pre-hearing review from £150 to
£500; and enabling the tribunal to strike out all together, at any stage in the
proceedings, an application it believes has no real prospect of success.

These changes are aimed at deterring weak and no-hope claims from entering
what is an already overloaded system. Given the restrictive requirements in the
new regulations, the Scottish Executive’s intention appears not to have been to
encourage applications to tribunals, but to extend access to justice and to
equality of arms.

In the meantime, while it is inevitably difficult to prevent a litigious
employee from going to tribunal, with or without legal aid, prevention will as ever
be the key to ensuring applications are successfully defended.

David Morgan is a solicitor at McGrigor Donald in Glasgow

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