Why Cutting Legal Aid Could Lead to More Employment Tribunals

With the loss of their legal aid-funded employment specialists, the great majority of Citizens Advice Bureaux will no longer have the expertise and capacity to conduct such negotiation with employers, and to sift out misguided or evidentially weak claims.
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There is a small dining room inside Number 10 which frustrated political advisers have used for years to solve some of their most intractable difficulties.

It's not so much to look at: there's a slightly rickety oval table and about 10 chairs - but what it lacks in gold, polish and pillars, it makes up in its almost magical influence on warring officials from departments across Whitehall.

The time-honoured technique - passed on by from one generation of Downing Street inhabitants to the next - is to invite in officials who seem hell bent on disagreement, or implementing policies that almost exactly cancel each other out, serving them a rather nice cup of Earl Grey in rather nice china, and then asking them for a quick reminder of what the problem seems to be.

I don't know whether it's the history or simply the difference a good biscuit makes, but without fail, conciliatory and constructive conversations seem to flow.

It's now time to invite over officials from the Ministry of Justice and the Department for Business, Innovation & Skills (BIS), responsible for legal aid and tribunals.

Those in BIS want to cut the cost of the employment tribunal system, by reducing the number of employment tribunal claims. So they're planning to introduce application and hearing fees, and increase the qualification period for legal protection against unfair dismissal from 12 months to two years.

Their counterparts down the road in the (swankier) Ministry of Justice building want to cut the legal aid budget. This is an unenviable job: there are no easy wins and lots of organisations are bitterly opposed to most of the cuts. But their proposal is to get rid of almost all legal aid for employment advice, along with other social welfare law advice. So far, so logical.

The fly in the ointment here is that cutting legal aid-funded employment advice will almost certainly increase the number of employment tribunal claims.

Specialist employment advice does not lead, inexorably, to a tribunal claim in every case. On the contrary, more often than not it leads to a resolution of the 'problem' by other means, such as negotiation with the client's employer (or former employer). These settlements, outside the formal legal system, stand a better chance of keeping the employment relationship intact. And that's good for everyone involved, including George Osborne.

In many other cases, the adviser concludes that the employer's actions were indeed unlawful, but that a long and no doubt stressful tribunal claim stands no realistic prospect of success - perhaps due to lack of evidence, or the inadequacy of relevant law - so is best avoided.

With the loss of their legal aid-funded employment specialists, the great majority of Citizens Advice Bureaux will no longer have the expertise and capacity to conduct such negotiation with employers, and to sift out misguided or evidentially weak claims.

Put crudely, they will have little choice but to simply hand out a tribunal claim form to those seeking advice in relation to any workplace problem not covered by the statutory enforcement bodies (that is, problems relating to the national minimum wage, the 48-hour limit on weekly working time, and the rules governing employment agencies and gangmasters).

In the somewhat more refined words of Lord Justice Carnwath, Senior President of Tribunals, "without [legal aid-funded advice], not only will many be left in ignorance of their rights, or without the ability to pursue them, but the load of tribunals may increase rather than decrease, both because cases will come to the tribunal which could (with proper advice) have been avoided or settled, and because lack of preparation may add to the length of hearings."

Not for the first time in the history of policy development, therefore, a proposed saving in one area (legal aid for employment advice) appears likely to have a detrimental impact on another government objective, in this case a reduction in the number of employment tribunal claims.

Time to put the kettle on in Number Ten, open the biscuit tin and make a few phone calls.