When the gloves are off

Jon Robins reveals some hard truths about employment tribunal anomalies

Earlier this year Watford employment tribunal awarded Elon de Oliveira £35,700 after a sustained period of racist abuse he suffered at work as a hospital porter at Hammersmith Hospital.

Elon was harassed on an almost daily basis over two years by his manager and supervisor, a particularly unpleasant father and son team. Taunts included: “F*** off back to Brazil, you Brazilian c**t”, and “All Brazilians have sex changes, when are you getting yours?” It wasn’t just verbal insults, Elon was also pushed around and his pay stopped.

As a result of a quirk in our legal system, employment cases are deemed “non-contentious” despite the self-evident truth that disputes between workers and bosses can be as bitterly fought as any other kind. This anomaly allows for the use of contingency fees (as opposed to bureaucratic, over-regulated conditional fees). Claimant employment lawyers point out with justification that this has enabled workers to enforce their legal rights whereas they would otherwise be disenfranchised because of the lack of state funding.

Employment tribunals “aren’t an easy venue for the unrepresented to access justice”, reflects Laurence Wilson, principal solicitor at the Kensington & Chelsea Citizens Advice Service who advised Elon. “Many areas of employment law are complex, and well-resourced employers are quick to exploit the imbalance,” he adds.

In Elon’s case, Synergy’s lawyers made an offer last May of a meagre £4,000 (“We believe your client could expect to receive no more than £1,500 by way of a compensatory award...”). If Elon rejected that, he was told that they would be after costs of about £8,000.

The defendant threw everything at the case which ran for four days and involved 10 witnesses. The defendant’s costs would have far outstripped not only his client’s ability to pay but any sum they could have hoped to recover. “But there’s nothing terribly remarkable about this disparity,” says Wilson. “It’s fairly standard behaviour.”

The ability of workers to enforce legal rights in the employment tribunals raised its head recently when the Ministry of Justice (MoJ) published proposals at the end of last year to rein in contingency fees, including the idea of a 25% cap on damages. The employment law expert Kerry Underwood recently reckoned as many as 500,000 unrepresented claimants could effectively be denied legal representation in employment cases because such the cap would make cases non-viable. Underwood, like many, regards the proposals as “a rather crude sop to the trade unions to keep them onside ahead of the election”.

The subject of unions’ ire is reckoned to be the Newcastle-based lawyer Stefan Cross, who is bringing equal pay claims on behalf of some 30,000 low paid women. Depending on your point of view, Cross is either a one-man litigation tsunami or champion of the underdog. Brian Strutton, of the GMB union, once accused Cross (formerly of the union firm Thompsons) of “tearing up” industrial relations (“…good for lawyers, but millions of people won’t have a union which can represent them”).

The latest version of the regulations show that the cap is to be set at 35% (not 25%), “slightly below the 40% including VAT which my firm charges, but I can live with it,” says Underwood, who is delighted that ministers have listened to the arguments.

Is “no win, no fee”, the panacea that the employment lawyers would have us believe? The MoJ proposals drew on last year’s study by Professor Richard Moorhead of Cardiff Law School (Something for Nothing). There was no evidence of overcharging (in fact, contingency fees were “probably a bit lower” than hourly rates) but Moorhead was critical of confusing extras, such as adding VAT and disbursements to bills.

There isn’t much room for complacency though. While claimants in the Moorhead study might not have felt ripped off, they were just grateful for what they could get. The fact that so many people are “willing to sign away 40% or 50% or more of any cash awards made illustrates their desperation for justice”, says Steve Hynes, director of the Legal Action Group.

Nor will contingency fees reach the most vulnerable workers because (surprise, surprise) there isn’t enough money in their cases to make them viable for lawyers. That’s the experience at Kensington & Chelsea CAB. “If somebody has lost their low paid job and you are looking at, say, six months’ lost pay well for a part-time cleaner, then it’s not worth taking a cut,” comments Wilson.

Jon Robins is a freelance journalist and co-author of The Justice Gap: Whatever Happened to Legal Aid

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