On the up after the Unison judgment?

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On the up after the Unison judgment?

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Back in July, the Supreme Court removed the requirement to pay a fee in order to bring a claim in the Employment Tribunal.

Recent statistics from the Employment Tribunal show that the number of cases received by Employment Tribunals rose by 90% to December 2017. So, clearly, the removal of fees has made a difference.

The statistics also show that the largest type of claim disposed of was for “unlawful deduction of wages”.  Lawyers involved in more complex cases can often forget that many ET claims involve the simple premise: “my employer has not paid me”. These claims became largely uneconomic overnight on the introduction of fees. So, the fact that ETs are sorting out more of these claims is encouraging.

But whilst there is reason to celebrate a partial restoration of to “access to justice”, issues remain:-

Legal Aid

There are not many employment lawyers (like me) who provided advice under the “old” legal aid scheme.  I have seen first-hand the benefit of my advice: from securing payment of holiday pay to low-paid workers to dealing with complex discrimination cases. 

I have also been able to intervene early: to forestall claims without merit and to help people resolve matters at work, so they did not need to bring a claim.

But, back in 2012, the Government cut legal aid for employment cases – apart from for discrimination matters, for which they introduced a (little-used) helpline.  Now we have heard that the tender for the new contract has been withdrawn – apparently because nobody wanted to do it. So, as it stands, there will be no legal aid for employment issues from 1 September 2018.

Lack of representation

Another look at the statistics shows how representation for individuals is changing. In 2007/2008, 28,614 cases involved trade union representation; in 2016/2017, this was down to 1,863 cases.

We are increasingly helping individuals who have brought their own claims but have become unstuck, confused or uncertain further down the line. Sometimes, we just provide a sanity check but sometimes a complete overhaul of their case is required.  Some early assistance would have helped all of them.

The review into legal aid provision is being encouraged to focus on the importance of “early intervention”.  This is as relevant to employment issues as for any other aspect of civil justice.