Employment law and tribunals: a critical analysis - Part 4
There is a movement, fortunately not currently particularly successful, towards the replacement of lawyers with information technology. A group of academics appears to be furthering their careers from prophesying the end of lawyers and the triumph of computers. This movement largely ignores the reality of everyday legal practice, which is essentially about relationships between human beings. Perhaps some areas of legal work in the commercial or conveyancing field can be transferred from people to machines, saving workers from lives of drudgery. But any lawyer who has practised in the fields of, for example, crime, family or employment, will know that their work is all about human beings and not about machinery. A very clear, and not unusual example, is that of a worker who has been made ill by workplace conditions including the overuse of computers and emails. Given the professional duty to act in the interests of the client, it is clear that the last thing that such a client needs is to be referred to a machine for advice. Machines, at least at present, cannot deal with emotional communication and are unlikely ever to be able to offer a tissue for drying tears. Those who advocate the end of lawyers and their replacement with machines appear not ever to have advised clients who have lost their jobs in highly stressful circumstances and who need to tell their story to a professional adviser. The day may come when computers can offer counselling services. It has not yet arrived.
Another aspect of the movement towards the computerisation of legal services is the apparent failure to recognise that hardware and software can break down. The clearest current example of this is the repeated failure of information technology related to communications between prisons and the criminal courts. Often, the reality is that the systems simply don’t work. Any criminal practitioner is aware of the intense frustration and waste of court time caused by this inefficiency. To react to this by arguing that the technology will soon be perfected is to avoid the reality of the present imperfections of computer hardware and software, the vagaries of electricity supply and the recognised, and excusable, inadequacies of information technology operators.
There are an estimated 6.5 million disabled people in the United Kingdom. There is evidence, anecdotal and statistical, of discrimination against the disabled. If ever there was a need for a clear set of rules, it is in the context of protecting the rights of the disabled.
The current law dealing with disability discrimination is set out in the Equality Act 2010. This Act replaced the Disability Discrimination Act 1995, but many of the cases decided under the 1995 Act continue to apply. The legislative provisions, it is fair to say, are so opaque and convoluted that non-lawyers and lawyers alike face extreme difficulty in grasping their meaning. It seems, without confidence of accuracy, that there are five, or perhaps six, types of disability discrimination. Each of these has a separate and complex definition. Identifying the type of discrimination which applies in a specific case requires a major effort of library research and analysis. It is simply not realistic for most disabled persons who are not lawyers to bring their own proceedings. Lord Justice Sedley commented, in a disability case, that the law in its present form was not at all easy to follow. This was a particular misfortune in an Act which it ought to be possible for employees and managers to read, understand and implement without legal advice or litigation.
Harvey on Industrial Relations and Employment Law, the leading employment law book, has more than 50 closely printed and argued pages of text dealing with disability discrimination in employment. The editors of Harvey describe the legislation as unusually complex and posing novel questions of interpretation. They state that a proper understanding of the law requires a close study of its structure and technical detail. A commonsense approach is simply not sufficient and, in many cases, is likely to be positively dangerous if taken as a guide to proper behaviour.
Disabled employees who are non-lawyers, for whose protection the law of disability discrimination exists, are effectively prevented from understanding the rules. They are obliged to seek legal advice, often at ruinous cost, in order to understand their rights.