The employment tribunal process is intended to be accessible to people without specialist knowledge, and many individuals do represent themselves. Nevertheless, most individual claimants will prefer to have representation if they can find it, and in most cases representation will improve their chances of a successful outcome.
It is suggested that claimants who cannot afford to pay substantial sums of money for representation should consider the possibilities of free or affordable representation in this order:
• their trade union, if they belong to one;
• their household, credit card, car (etc.) insurance;
• a voluntary sector advice service;
• a solicitor or barrister;
• employment consultants.
A claimant who is a member of a trade union should normally expect to be represented by the union in a dispute with his or her employer. Unions have different rules about which cases they will support, and some will withdraw support (sometimes shortly before the hearing) if the claimant refuses to accept what the union’s lawyers advise is a good offer of settlement. Claimants considering relying on union assistance should make sure that they have been given clear information about the circumstances in which the union will withdraw its assistance.
Household (and other) insurance policies include legal expenses insurance surprisingly often. This tends to be a neglected source of assistance for claimants for the simple reason that many do not realise that they have the cover. It can be extraordinarily good value: the insurance may cover all legal expenses, including specialist representation at the hearing, with no claw-back even if the claimant recovers a large award. It is important to investigate this at an early stage in the dispute, however, because a claimant who has already taken steps in employment tribunal proceedings without the advice of an insurer-approved lawyer may find that she has invalidated her insurance. It is also worth checking motor insurance and any policy attached to credit cards, and any other membership that might include insurance. Even membership of a football club has been known to provide this type of benefit.
Voluntary sector advice agencies
There are various kinds of voluntary sector advice agencies that may be able to offer free advice and/or representation. Almost all of them are badly over-stretched, and many claimants will spend fruitless hours telephoning advice agencies only to be told that no-one can help. However, some agencies will deliver an exceptional service that rivals the best that private practice solicitors can offer, so (within limits) it is worth persevering. The process may well be frustrating, but anyone seeking free representation should try not to let the frustration show. Mostly ‘we cannot help’ means just that – the organisation simply has no spare capacity, or does not do this sort of work. If there is any flexibility, human nature is as it is and charm almost always gets further than aggression. ”There is a practical insight of wide application here. Even when – as sometimes – aggression may be effective, charm should always be tried first. The reason is that if charm does not work, aggression is still available as a last resort. Starting with aggression and then trying to backtrack to charm is futile.”
Most voluntary sector advice agencies belong to an umbrella organisation, and that organisation’s website will often be the best starting point for finding local services. The main umbrella organisations are:
Law centres are, in effect, not-for-profit solicitors’ practices that specialise in what is broadly defined as ‘social welfare law’ – typically housing, immigration, employment and welfare rights. Most, if not all, law centres operate a catchment area policy and will only advise those who live (or sometimes work or worked) in their area. Many will only accept clients who are financially eligible for public funding, and the rest are likely to impose some kind of means test on access to their services. Most employ an employment lawyer or specialist adviser. The website of the umbrella body, the Law Centres Federation, lists 60 law centres, roughly half of them in Greater London and most of the rest in substantial town or city centres.
Citizens Advice Bureaux
Citizens Advice Bureaux (CABx) tend to offer a generalist service, and only some employ a specialist employment adviser. CABx do not generally have a catchment area policy and will advise anyone who approaches, subject to availability of advisers. CABx do not generally means-test their clients except for Legal Services Commission funded work. CABx give advice from around 3,000 locations in the UK; any sizeable town centre is likely to have a bureau. The umbrella group is called Citizens Advice (formerly more intelligibly known as the National Association of Citizens Advice Bureaux).
Racial Equality Councils
Racial Equality Councils (RECs) are specialist advice agencies that serve their local area but will deal only with claims that involve an element of race discrimination. .
The Free Representation Unit and the Bar Pro Bono Unit
In London, the Free Representation Unit (FRU) can sometimes provide representation at employment tribunals, but it does not deal direct with members of the public. Cases must be referred, after a hearing date has been fixed, by a solicitor, law centre, CAB or other advice agency. FRU only accepts referrals from solicitors and advice agencies that are signed up with the organisation and pay an annual subscription; for further details, and a list of subscribing agencies, see the organisation’s website. Claimants in London who are receiving advice and assistance for case preparation, but whose adviser is not able to represent them at a hearing should make sure their cases are referred to FRU as soon as a hearing date is set to have the best chance of representation. Most FRU volunteers are student or trainee lawyers who work under the supervision of a specialist employment lawyer. They choose their own cases, rather than having cases assigned to them, so FRU can never guarantee representation in any given case until a particular volunteer has offered to take the case on.
The Bar Pro Bono Unit (BPBU) is a charity funded by the Bar Council and others that matches clients in need of free representation with barristers willing to give their time. Because the kind of work barristers are permitted to do is restricted, BPBU is best able to assist clients who are represented by a solicitor’s firm or advice agency that is willing to retain conduct of the case and instruct the barrister to do defined pieces of work – to draft a document, for example, or appear at the hearing. Like FRU, BPBU will only accept referrals from an advice agency – it will not deal direct with members of the public. Unlike FRU, BPBU puts applications for assistance through a careful sift to decide whether or not to offer help, so an application to BPBU should always be made as early as possible. BPBU itself is located in London, but its services are potentially available throughout England and Wales. As with FRU, the fact that BPBU has accepted a referral is no guarantee that it will be able to assist.
LawWorks is a solicitors’ pro bono organisation. Like the Bar Pro Bono Unit and FRU, it accepts applications for assistance only through advice agencies. Like BPBU, it applies both means and merits tests before offering assistance. An application form can be downloaded from its website.
Some of the larger disability charities, including RNIB (Royal National Institute for the Blind), RNID (Royal National Institute for the Deaf), and the Disability Law Service employ specialist advisers who can advise and sometimes represent in disability discrimination cases. Public Concern at Work provides a helpline on whistleblowing issues but does not undertake casework. The Terence Higgins Trust provides helpline advice on HIV-status employment issues, and may be able to refer on to other agencies for casework. The Andrea Adams Trust provides advice and information on bullying at work.
This is not a comprehensive list, and policies and personnel can change rapidly, so it is always worth investigating carefully whether there is a specialist charity that may be able to help.
The Equality and Human Rights Commission
The Equal Opportunities Commission (EOC), Commission for Racial Equality (CRE) and Disability Rights Commission (DRC) were replaced on 1 October 2007 by the Equality and Human Rights Commission, which is now responsible for all aspects of equality law, including those like age and sexual orientation not covered by on of the original commissions. It is not yet clear how much individual casework the EHRC will do. There is basic guidance on running discrimination cases on its website. It also runs a number of helplines.
Private practice solicitors
Claimants who are eligible for Legal Services Commission funding (those who are dependent on means-tested benefits, or are on very low incomes) may be able to find a solicitor who can advise and assist with preparation of the case. There is no public funding (in any but the most exceptional cases) for representation at the tribunal hearing, so claimants who take advantage of this scheme are likely to find that they either have to represent themselves at tribunal or pay privately for a solicitor or a barrister to represent them. In London, some solicitors will be able to refer the case to the Free Representation Unit at this stage, so before choosing a solicitor it may be worth finding out whether they subscribe to FRU’s service.
The decision to pay privately for employment law advice should be approached with caution. Lawyers’ fees can mount up frighteningly fast, and the total value of an employment tribunal claim is often too small to justify them. Some solicitors offer ‘no win no fee’ agreements, but the drawback to these is that, because the solicitor is taking a risk of not being paid at all, the fee if the case is successful will normally be higher than it would otherwise have been. There can also be sums that the client has to pay anyway, such as fees for medical or other experts’ reports or barristers’ fees. Occasionally this will be the best, or the only practical, way of running an employment tribunal claim, but a claimant considering taking this course should make sure she or he has had a very clear explanation of the ‘worst case’ outcome before making a decision. It is also worth asking solicitors to advise, as a preliminary matter, on whether any insurance policy the claimant has is capable of covering legal expenses.
Employment consultants are now regulated under the Compensation Act 2006. Some of these market their services aggressively to claimants and respondents in employment tribunal cases. They vary in quality, and although some can provide a good and comparatively cheap service, others are worse than useless. It is suggested that claimants should do their research carefully before using the services of these organisations. The first thing is to check that they are authorised under the Act.
A further question to ask is how many costs orders have been made against clients of the organisation in the past year, compared to the total number of clients represented. Costs orders are still rare in the employment tribunal, and they tend – though not invariably – to suggest bad advice or poor conduct of the case by the representative. Costs orders running at 1% or more of cases handled by a particular consultancy would give cause for concern. It is also worth asking whether any wasted costs order have ever been made against the organisation: wasted costs orders are very rare indeed, and even one against a particular consultancy can be taken as a warning.
Free representation before the Employment Appeal Tribunal
The factors governing the availability of free representation operate differently at the level of the EAT than at first instance, and claimants who cannot afford to pay for representation will have a better chance of finding someone to act for free if they understand a certain amount about how this works.
There are two significant factors. The first is that appeals are normally much shorter than employment tribunal hearings. This is because, except in very unusual cases, no witnesses will be heard, and because the questions on which the EAT will hear an appeal are narrowly defined. Appeals only rarely last more than a day, and a large number will be completed in half a day or less. This also means that preparation for an EAT case is normally much lighter than for a first instance case: witnesses do not have to be interviewed, statements do not have to be prepared, documents do not have to be requested and disclosed, the hearing bundle will be much shorter and so on. This means that offering free representation on an appeal is less daunting in terms of work for the lawyer who makes the offer. (This is especially so for someone who is acting for free in the sense that they themselves are doing the work for no pay – this is a distinction that may be lost on the client, who does not pay in either event, but it can be useful to be aware of it. A lawyer working full time for a legal charity that provides free representation is normally paid a salary. A lay adviser at a Citizens’ Advice Bureau, a Free Representation Unit volunteer or a barrister acting for no fee is giving his time for nothing, so the longer the case takes the more time he loses from paid work.)
The other factor is double-edged. This is that appearances before the EAT, which is the next step up the legal hierarchy, tends to be regarded by representatives both as more interesting and more intimidating than appearing in the employment tribunals. Hearings are often presided over by High Court judges, and proceedings are superficially more formal. Some advisers who conduct cases routinely and skilfully in the employment tribunals simply lack the confidence to appear at the EAT and may be unwilling to take cases to appeal because they feel (although unqualified advisers are allowed to appear there and often do) that the EAT is the preserve of barristers and solicitors. The other side to this, however, is that many advocates will be more willing to take on appeals for free because they provide valuable – and comparatively rare – experience.
Both of these factors mean that a claimant who has failed to secure free representation at first instance from a local legal charity or other body should not assume for that reason that he will be refused help with an appeal. It is worth asking again at this stage, especially if the appeal raises a question that could be of general importance to other claimants in the future.
It is worth mentioning two specific sources of free representation at the EAT, both of which tend to find it easier to help at this stage than at first instance. One is the Free Representation Unit (FRU), and the other is the Bar Pro Bono Unit. Both organisations are London-based, and part of the reason they are more likely to be able to help with appeals is the simple geographical fact that the EAT for the whole of England and Wales has its hearings in London.
Claimants who live or work(ed) in greater London will often be able to be referred direct from their local Citizens Advice Bureau (CAB) or law centre. Claimants from outside London will have a harder task, but as the EAT in London deals with appeals from the whole of England and Wales, FRU will accept referrals on appeal for claimants from elsewhere in the country provided the referral comes from a registered FRU referral agency. The best bet for claimants outside London is to ask their local CAB to speak to FRU.
The Bar Pro Bono Unit applies more stringent tests than FRU on the question whether a client is able to afford to pay for representation, and on the merits of the case, so to maximise chances of an offer of representation it is sensible to make parallel applications to both organisations. Once an offer of representation from one has been accepted, the other should be informed immediately. Although FRU volunteers are mostly still in training and BPBU refers cases only to qualified barristers, FRU volunteers have the benefit of specialisation (and specialist support), whereas most junior barristers are generalists. Because of this, it is not possible to make reliable generalisations about which organisation will provide a higher quality service. Neither FRU nor the BPBU can ever guarantee to provide representation for every case they accept: both are dependent on the availability of a suitable volunteer on the particular day.
A third source of free representation is called the Employment Lawyers Appeals Advice Scheme (ELAAS). This cannot be directly accessed by claimants and is not guaranteed, and for that reason should probably – although the quality of the representation is usually very high – be treated as a last resort. Where there is a preliminary hearing (as to which, see paras xx below), litigants who have no representative on record with the EAT as acting for them may be offered the assistance of an ELAAS adviser. The ELAAS adviser will be at the EAT on the day to advise and represent if appropriate. he will have had the papers a few days in advance, but will not be able to meet the client before the day of the hearing and will not be able to take on conduct of the case. If the case then goes forward to a full hearing, there should be an opportunity to be referred to FRU and/or the Bar Pro Bono Unit at this point also.
The greater availability of free representation in the EAT, compared with the tribunal, means that it can be a useful indicator of the strength of the appeal. At the tribunal level a failure to get free representation only means that there are many more cases than there is help available. At the EAT, if serious efforts have been made to find free representation without success, this is more likely to indicate that the appeal is not a strong one. There are certainly exceptions to the rule, but, in general, reasonably arguable EAT cases are easy to find representation for. This is particularly true of FRU, where the volunteers are at the beginning of their careers and eager to gain experience at this level.