Employment Tribunal: money
The key to understanding the English civil justice system including ET proceedings, is the central role of money. Almost every aspect of English law has to do with money or claims for money.
Any civil claim is best fought, not with reference to the rights and wrongs of the case, the relevant law, the strength of the evidence or the right to justice. The key issue is money. What, in financial terms, does the claimant seek to achieve? If this approach is adopted, the case is more likely to run smoothly and the chances of success are increased.
Claimants need to be aware at the outset that ET proceedings can be very expensive. I have lost count of the number of clients who have not been able to start or continue their cases because of lack of money.
Legal expenses insurance
This can work well if you have it. It may be an add-on to house insurance or other insurances. The premium is normally low. It won’t apply to issues which arose before the insurance was taken out.
The insurer will normally insist on the case being handled by their own panel of lawyers. However, if you want your own chosen lawyer to act for you, the current legal position is that you have the right to choose your own lawyer, and you can insist on this. Insurers will normally eventually agree to the lawyer of your choice.
The insurer will also require evidence that the claim has a reasonable chance of success (normally at least 60 per cent ) and this must be confirmed by a lawyer.
If the insurer agrees to cover the cost of the case, it will issue detailed requirements to be complied with as the case develops. These include keeping the insurer fully informed of any significant developments and submitting a monthly report. It is crucially important to comply with these requirements and to make full disclosure of developments, otherwise the insurance cover may be voided. Insurance contracts are contracts which require absolutely full disclosure.
Trade unions can provide legal assistance but they will need to be certain that a claim has reasonable prospects of success.
No win no fee
No win no fee schemes may sound attractive, but beware and be aware of the following:
No win no fee has been described as a grotesque over-simplification. In reality, it has developed into an impenetrable jungle of regulations and procedures, mostly concerned with insurance premiums and an element of moneylending. It has also been described as another gimmick to avoid state responsibility and to secure justice on the cheap.
In outline, a solicitor assesses the chance of success in a case and decides on a success fee to be paid on top of normal fees if the claim succeeds. This includes the cost of an insurance policy to cover costs if the claim fails.
Citizens Advice Bureaux
Free Representation Unit
Bar Pro Bono Unit (now renamed Advocate)
The websites of these organisations are listed at the end of this Guide.
My own view is that legal advice and representation should not be a matter of charity but should be provided free of charge by properly funded organisations staffed by salaried workers. This may not be realistic where government spending is not directed at the legal system.