Once upon a time, a long, long time ago, a newly-elected Prime Minister called Tony Blair claimed to have invented a wondrous thing: joined-up government. From now on, the then purer-than-pure premier said, government departments would work together to ensure that an initiative in one area of policy would not have unintended consequences in another. But the years passed, a few wars were launched, and it became clear that few if any of those actually running government departments, and designing their policies, had paid any attention.
Officials in the Ministry of Justice and the Department for Business, Innovation & Skills (BIS) were clearly not listening, as to this day each gives the impression of not really understanding the effects of its own new policies on those proposed by the other. On the one hand, BIS wants to cut the cost of the employment tribunal system, by reducing the number of employment tribunal claims.
To this end, it plans to introduce application and hearing fees, which will constitute a substantial barrier to justice for low-paid workers. And it plans to increase, from 12 months to two years, the qualifying period for legal protection against unfair dismissal – a charter for rogue employers that will, at a stroke, make the jobs of some three million workers even more precarious than they are already, depressing consumer confidence even further and making George Osborne’s job of getting the economy out of recession that much harder.
On the other hand, the Ministry of Justice wants to cut its legal aid budget, and plans to achieve this by the simple expedient of abolishing most legal aid for employment advice (as well as other social welfare law advice). But Citizens Advice is far from alone in thinking that this will have the no doubt unintended effect of increasing the number of employment tribunal claims.
For specialist employment advice does not lead, inexorably to a tribunal claim in every case, as policy makers in both BIS and the Ministry of Justice appear to assume. 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). Such settlements, outside the formal legal system, stand a much better chance of keeping the employment relationship intact, to the benefit of the worker, the employer, and HM Treasury. And, in many other cases, the adviser concludes that the employer’s actions were indeed unfair or even unlawful, but that a long, time-consuming 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 not pursued.
Even in those cases where the advice does lead to a tribunal claim, the involvement of a specialist legal adviser makes the job of the tribunal that much easier – to the benefit of all, including HM Treasury. In a rare example of joined-up thinking, BIS itself rues ‘the many difficulties faced by unrepresented claimants, when trying to articulate their claim effectively, and the subsequent burden this can place on the employment tribunal system’.
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 and/or the telephone number of Acas (which the Government says it is “equipping to play a stronger role in pre-claim conciliation”) to those seeking advice in relation to any workplace problem not covered by the statutory enforcement bodies – that is, any work problem other than those relating directly 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. Is anyone in government willing, and able, to step back, look at the bigger picture, and adopt a more joined-up approach?
Richard Dunstan is a policy wonk who has worked for Citizens Advice, the National Audit Office, the Law Society, and Amnesty International UK.