Work and Business: Legal aid on the line

Workers’ rights have been seriously eroded since the coalition government came to power. It is now much harder for someone to challenge unfair employment practices or discrimination at an Employment Tribunal (ET). It is also getting much harder to get legal advice and assistance after cuts to the legal aid scheme.

The qualifying period for claiming unfair dismissal has doubled to two years, fees for making an employment tribunal claim have been introduced and compensation for loss of earnings in cases of unfair dismissal is now limited to one year’s pay.

Legal aid is no longer available in employment cases unless the issue is discrimination. It is now much harder for people to find out their rights and access the advice they need to exercise them.

Employment practices have also dramatically changed, with many workers now given zero hours contracts in a wide range of low paid jobs. Temporary and low paid work is now the norm for many people and endemic in certain industries such as care work.

There is clearly a very serious issue about access to justice for low paid and vulnerable workers, most of whom are non-unionised. There is also the risk that some employers will exploit this situation in the belief that they gain a competitive advantage by doing so.

In any event, many successful claimants do not receive a penny of their awards from their employers. Government commissioned research found that 51 per cent of claimants received only part, or none, of the award. For example, Mr P won an unfair dismissal case after raising health and safety concerns at work. He was awarded £26,000 compensation by the ET in September 2013. But to this day he has not received a penny of the award as his employer suddenly ceased trading and opened up again under another name.

Since July 2013 it has become disproportionately costly to pursue a claim in the ET, especially for low paid workers pursuing modest claims for wages, notice pay or holiday pay. In most cases the fees cannot be recovered if the hearing does not go ahead. A simple money claim for wages costs £165 to make – a week’s wages for some people.

A fee remission scheme is supposed to help people on lower incomes but claimants are expected to use any savings of over £3,000 first. Someone could therefore be eligible for income support yet still have to pay an ET fee. That’s a big risk for someone out of work to take with their savings.

A worker seeking to redress a wrong has to consider first whether they can afford to pay the fee, then if they do pay and succeed, they need to think about whether they are likely to recover the award made. The research outcomes do not inspire confidence of recovering an award in full.

While discrimination in employment remains within the scope of legal aid, accessing that legal aid has changed radically and is arguably more difficult. Previously face to face advice was available from a wide range of locally based organisations. Now there are only three sources of discrimination advice in England and those cannot be accessed directly. A prospective client has to go first to a Legal Aid Agency telephone ‘gateway’. This is essentially a call centre.

Face to face advice will only now be given in exceptional circumstances. Most communication between client and adviser is by electronic means or by post.

The most recent figures for ET claims show that there were 79 per cent fewer claims from October to December 2013 than in the same period the previous year and 75 per cent fewer than in July to September 2013. Discrimination claims are currently running at 25.5 per cent of the volume before fees were introduced.

These figures raise serious concerns about access to justice for workers. The contrast with cases before April 2013 are stark. For example, Mr J, a part time worker in his early 60’s with eleven years’ service earning the national minimum wage, should have been transferred (under TUPE) to a new employer, when his previous employer lost a contract to provide services. On the day of the transfer he reported for work to find another worker doing his job. He was told the police would be called if he did not leave.

At the time Mr J was entitled to legal aid and he went to his local Law Centre for help. The case eventually went to a full hearing and Mr J was awarded compensation for unfair dismissal.

Vulnerable clients such as Mr J would not have been able to pursue a claim without legal aid. If it had happened after April 2013 who would have helped Mr J? Would he have had justice?

It’s clear that the abolition or reduction of ET fees, the abolition or increase in the threshold to qualify for fee remission, the refund of the hearing fee if the case settles and the reinstatement of legal aid are desperately needed. The employment tribunal system itself may need to be reviewed. The intention that the ET be a low cost independent forum for resolving employment disputes now appears to be part of history.

Julie Bishop is director of the Law Centres Network.