Tagged: representation

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FRU has spare capacity

The Free Representation Unit is a London-based charity that provides free representation at employment and social security tribunals. Law students and trainee barristers and solicitors volunteer for FRU work. For general guidance about how FRU works and what kinds of cases it takes on, see its own website.

In general, demand for free representation outstrips supply, so FRU can never guarantee to help until a particular volunteer has offered to take on a case. But there is one particular kind of case for which, at the moment, FRU actually has more volunteers than work for them to do. Those cases have a good chance of finding a representative.

Straightforward short cases

If your case is listed for only one or two days and is fairly straightforward, then as long as you get it referred to FRU in reasonably good time before the hearing, you are likely to get a volunteer to represent you.

Getting to FRU

If you have a case that you might want FRU to help with you will need to see one of their referral agencies. It is not possible to approach FRU directly and (despite our close links with FRU) it’s not possible to approach them via this blog.

A list of referral agencies is available on the FRU website. If you are in London your best bet is your local CAB.

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Facing Vader

A common experience in litigation is nervousness about facing the other side in tribunal.

This can happen to almost anyone. Litigants in person are often intimidated if their opponent is a lawyer. A CAB adviser might be nervous of specialist counsel. And there are a few QCs everyone is a bit scared of.

Unfortunately, these fears are, at least to some extent, justified. Representation will help the side that has it; and the better the representation, the more it will help. All other things being equal, a litigant with an excellent representative will be more likely to win than one who isn’t represented.

The reasons for this are simple, if unfair. The better the representative the better the case will be presented. The right points will be taken, arguments will be presented persuasively and, perhaps most importantly, witnesses will be cross-examined effectively.

In general, an experienced lawyer will do all of this better than a litigant in person or lay-representative. People who become lawyers are likely to have a certain amount of aptitude for the job. Then they are trained, both in the law and in how to run a case. Finally, they have a good deal of experience in representing clients.

At the extreme end, this means that you may find yourself facing an outstandingly clever person with a natural talent for advocacy who has spent years in practice, honing their skills. It is perfectly rational to be nervous about this.

There are, however, a few things to bear in mind.

Most importantly, other things are never completely equal. The single most important factor in deciding the result of a case is what actually happened. Nobody can turn a weak case into a strong case or vice versa. If on learning that you were pregnant, your employer sacked you on the spot and then sent you a letter complaining of your disloyalty in putting family before your job, then you will win your unfair dismissal and sex discrimination even if your employer is represented by the most brilliant QC in the land.

What good advocates can do is move the probabilities about. If the chances of winning are more or less 50 / 50, good representation might make it 60 / 40. Similarly, when dealing with remedy, representation might make the difference between an award of £4,000 and £7,000. This is still important, but a much less scary way of looking at it.

Also remember that your opponent’s ability and experience is to a large part absorbed by dealing with things that you do not have to do. Lawyers do not deal with one case at a time. They deal with dozens, or fifty. A great deal of their work is mastering the facts and law relating to all these cases. As a litigant in person, you don’t have to do any of that. You know your case inside out, because it is your case.

On the other hand, as a litigant in person, or even an inexperienced advocate, you do have some advantages. The tribunal will probably cut you more slack, and they will expect to do more work themselves. They will expect you to explain why you think your dismissal was unfair or how you were discriminated against. But they will also expect to do a lot of the work in translating your account into legal language. Similarly, they will expect to have to engage more closely with the evidence, even examining witnesses if necessary, than they would if you were represented.

And finally – if you do find yourself facing someone with a fearsome reputation, consider this. Lawyers with fearsome reputations generally charge fearsome fees. This has two potentially helpful implications: first, your employer must be seriously worried to be spending this much defending your case. That means they think you’ve got a good case. Secondly, it pushes up the settlement value of your case: if your claim is listed for a 10 day hearing and your employer has instructed a barrister who doesn’t get out of bed for less than £3,000 a day, that’s £30,000 they won’t have to spend if you agree to settle the case.

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Sharing the work

If you do not have a lawyer or other professional adviser to represent you in the tribunal, you may want to take a friend or relative with you to help you present your case. Tribunals have a tendency to insist that one person or another must present the case and not both. So if you are representing yourself, your friend may not be allowed to speak for you. If your friend is representing you, then you may be prevented from putting your own questions to the witnesses on the other side, or speaking to the tribunal at all except when you are giving evidence.

It is not obvious why tribunals take this line. It is true that more often than not in employment tribunal cases there will be only one representative for each party. But those who are legally represented do occasionally – if they think the case is particularly difficult and important – instruct two barristers, known as a ‘leader’ and a ‘junior.’ Both barristers may cross-examine witnesses and make submissions, and it is up to them to decide who does which part of the case. If a represented party is allowed to divide the work of representation in this way, it is hard to see why a claimant who does not have a professional representative should not do something similar.

So if you particularly want to share the task of presenting your case with someone else, explain to the tribunal at the beginning of the case that that is what you want to do. If they are reluctant to let you, point out that what you want to do is not very different from a barrister acting with a junior – and it is the more important to you to share the load because you are not used to this kind of work. Do try to be clear, though, who is in the driving seat at any given moment – the tribunal will get understandably impatient if you and your companion both try to speak at once.

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Unqualified representatives

We say in the book (at paragraph 1.19) that there is no restriction on who may appear as a representative in the employment tribunals. This (from 27 April 2007) is no longer true. The relevant provisions are scattered across a number of different pieces of legislation. The Compensation Act 2006 provides at section 4:

(1) A person may not provide regulated claims management services unless—
(a) he is an authorised person,
(b) he is an exempt person,
(c) the requirement for authorisation has been waived in relation to him in
accordance with regulations under section 9, or
(d) he is an individual acting otherwise than in the course of a business.

“Regulated claims management services” sounds very technical, but what matters here is that it includes advice and representation in employment tribunal proceedings.

Legal practitioners (barristers, solicitors, qualified legal executives and a few others as defined by regulation 4 of the Compensation (Exemptions) Order 2007 are exempt from these requirements, as are charities and not-for-profit advice agencies (regulation 6).

Employment consultants must be authorised. To find out if a particular business is authorised, ask it for its authorisation number and then use the search form on the website of the Ministry of Justice.

Note that regulated persons and bodies are bound by the Conduct of Authorised Persons Rules, the Complaints Handling Rules and the Client Account Rules.

Thanks to Adrian Melia of Humane Resources for pointing out this omission.