" HR essentials > Law at work > Legal developments > Analysis and opinion
Catherine Wilson 12 March 2013
Legal aid for employment cases
Will removing state financial support hasten the collapse of the tribunal system?
Lord Neuberger made headlines recently over the impact of legal aid reforms due on 1 April. He warned the cuts could make people feel they could not access justice, possibly leading them to “take the law into their own hands”. The introduction of fees later this year for bringing tribunal claims seems likely to provide a further limitation on access to justice.
The Legal Aid Sentencing and Punishment of Offenders Act 2012 will, among other things, remove new employment law cases in England and Wales from the scope of legal aid, with the exception of discrimination cases. So what will these changes mean in practice and why should employers be concerned?
Financial support Legal aid for employment cases has been restricted for years. Many cases resulting in landmark decisions could not have been brought without the support of the trade unions, the Equality and Human Rights Commission and its predecessor bodies, such as the Equal Opportunities Commission and Commission for Racial Equality, and so-called “no win no fee” lawyers (much hated by the Government), especially in the context of equal pay. However, the importance of even limited legal aid for employment claims should not be underestimated.
Legal help over employment matters is currently available to claimants who meet a merit and financial test. Full legal aid is available to cover representation at the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court. Over 20,200 employment cases were started under the legal aid scheme during the course of 2011/12.
Limited service Discrimination claims will remain within scope. However, whereas in May last year there were 179 offices franchised by the Legal Services Commission to provide employment law advice, in future advice will be provided remotely by telephone or email from only three nominated providers in Sheffield, Manchester and on Merseyside. Claimants will only receive face to face advice where the provider considers it impossible to advise them over the phone or by email, presumably in circumstances of particular disability such as severe learning difficulties. Employers encountering individuals who are struggling to manage their own discrimination claims may find it helpful to be aware of this admittedly limited service.
Special case The majority of employees will have no access to legal assistance. Viewed against the general climate of austerity and budgetary restraint, should the retention of legal aid for employment advice be treated as a special case?
The answer must be a resounding ‘yes’. Employment lawyers already see a steady stream of employees seeking employment advice and specifically representation at tribunal hearings without the financial means to pay for it. The removal of legal aid will only increase this to a flood, as there must be serious doubts over whether Acas, the Citizens Advice Bureau and other agencies can really meet the shortfall given funding cuts elsewhere.
Unrepresented claimants The costs will be felt in both human and financial terms............................"