Should legal aid be available for employment tribunal cases? Will it just encourage more people to try it
on or is it an important way of ensuring equal access to justice? Compiled by Lucy Carrington
Bernard Kingsley
Employee relations manager, Manpower
Introducing legal aid throughout the rest of the UK could lead to an uneven
playing field, to employers’ disadvantage. If applicants get better quality
representation through legal aid then employers will have to follow that and so
the costs of tribunals will increase. Clearly there has been a trend towards
legalism in the way in which tribunals operate. For example, workers often tend
to be represented and, given the increasing complexity of aspects of employment
law, need to be better represented. However, if we look at the original purpose
of employment tribunals it was to provide a relatively straightforward
procedure to bring claims that did not involve huge costs for either employee
or employer.
I’m more interested in the recent – but long overdue – proposals to improve
tribunal procedures. These include giving tribunals the power to strike out
weak cases at any stage in the proceedings. Tribunals will also be able to
impose a penalty against employees, or employers, who act unreasonably. It is
relatively easy for people to bring claims and with 40,000 staff nationally, we
do get a number throughout the year. But there are more spurious claims now and
tribunals have not yet had the teeth to weed some of these out.
It is important that people have the opportunity to bring claims, but this
has to be balanced against the constraints on employers. For example, big
employers who tend to be doing things properly in the first place, will almost
certainly be the hardest hit by any increase in the number of cases.
There is also the problem of consistency. We deal with tribunals in England,
Wales, Scotland and Northern Ireland and there is a marked discrepancy between
all the four countries. This is especially so in terms of the speed at which
tribunals handle claims – Northern Ireland is particularly slow. But even
within England there is a big variation in the speed and manner in which claims
are dealt with.
We urgently need to see the Government’s reforms to the employment tribunals
process in action.
Terry
Gorman
President, Socpo and assistant chief executive, Nottingham County Council
I’m
not in favour at all. I believe employees should become members of a union.
Unions help the industrial relations process and provide members with useful
benefits including funding their tribunal cases. To support legal aid would
undermine the union role.
In
principle, anyone with a justifiable claim should be able to make a claim but I
welcome the Government’s proposed penalty for vexatious claims. On the whole,
Socpo is keen on most of the tribunal reforms that are on the table. There are
a few other things we would like to have seen, for example, some sector
specific tribunals. It would help if tribunals understood the nature of local
government.
Dominic
Johnson
Head of employee relations
There’s
no clear evidence that lack of legal aid is preventing people from taking their
claims forward and I’m not sure that introducing it would have any impact. Nor
am I convinced that the Human Rights Act could be invoked if it were not
available.
The
rationale for introducing legal aid is potentially flawed. The Scottish
executive decided to push ahead because it feared someone might take a test
case under the Human Rights Act. But it has pre-empted things a bit as no case
has been through the courts yet.
We
want to see a case go through the courts before the UK government takes any
action.
Sarah
Veale
Senior employment rights officer, TUC
The
real problem lies not with tribunals but in the workplace. Most claims are from
small to medium sized firms where employers do not have the procedures to deal
with discipline and grievances. So no one gets a second chance.
But
in large organisations line managers and employees usually get to put their
case through internal personnel procedures. The result could be a final warning
for an employee so that everyone feels they have had a hearing.
It’s
interesting that as the amount of employee litigation has gone up the number of
workers covered by union agreements has gone down.’
David
Webb
Personnel manager, industrial relations, Group 4 Total Security Ltd
People
are more aware of their rights to complain and one aspect of tribunals that
concerns us is that there are more of them, and on a variety of subjects. We
have also found that increasingly employees will file a claim externally at the
same time as raising it internally.
We
want to restore the position where we resolve matters internally and so are
revising our grievance and discipline procedure. We’ve run a fairly relaxed
process until now, but we have had a number of people who have tried to raise
grievances in ways that are unacceptable.
It’s
a difficult conundrum. We fully support people’s right to make legal claims and
we encourage people to join trade unions, but we must not see personnel
departments bogged down in unnecessary process.
