Tribunals – Poor Justice for the Poor?
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
Within weeks of starting your law degree, it is easy to forget two very important things.
Firstly, that being able to understand legislation is very different to being able to read it and for most people this is not a natural skill, and secondly that having a right is worthless if you are not able to enforce it. Many of the core modules in a law degree cover areas where cases are being brought by sophisticated and rich corporate clients, who are advised by knowledgeable solicitors and barristers. Further, the cases we read are largely those brought in the Court of Appeal or Supreme Court, in front of the most highly regarded and most experienced judges in the country. It’s clear that not every legal case receives such attention, and it is easy enough to imagine that an employment law barrister dealing with individual cases needs a very different skill set to one who mostly deals with large-scale disputes between companies. And yet a law degree will barely cover the tribunal system, which deals with a huge number of cases that affect individuals in a far more direct way than many of the cases we cover in a law degree and is intended to work under very different procedures to the ‘normal’ courts.
The tribunals system covers many areas, each with its own specialist judges: employment, tax, school admissions and exclusions, gender recognition, immigration, social security, mental health, copyright and traffic being only some examples. They were consolidated in 2007 under recent reforms and are now administered as one, despite their very different focuses and histories. The thing they have in common is that they are intended to be quicker, cheaper and more informal than courts; a way of individuals to have their case heard and decided upon by a judge without a representative and without the cost involved in a court case. It also avoids the court system for the types of cases in which the white, middle-class male judiciary might be seen not to understand the importance of certain issues or to have a bias against the ‘ordinary man’ – in social security or employment cases, for instance. It is important to realise that some tribunals do not have this concern in the same way though –Tax cases in the First Tier Tribunal could involve huge sums of money, and the Competition Appeal Tribunal is likewise dealing with large companies and appeals against significant penalties.
To focus on the tribunals that centre on the individual, whether bringing a claim against an employer (Employment Tribunal) or the state (all others), it’s important to understand whether tribunals are a good alternative to a court case. Since legal aid is not available for many types of civil case (1) the system needs to work in such a way that untrained individuals can navigate it without help, or there needs to be a good system of advice and representation in place. The danger is that by sending individuals to a ‘quick and easy’ tribunal system, we are in fact denying them the best qualities of our legal system and refusing them the chance to vindicate their rights – in short, the danger is that the UK has a first-class legal system for corporate clients and ‘poor justice for the poor’.
Costs and representation
First things first, it’s important to know that you can get legal representation for a tribunal case. You can pay for it, of course, although if you are bringing a claim in relation to benefits or unfair dismissal it is unlikely that you will have the money to spare for legal fees. No-win-no-fee arrangements are also possible. For some asylum appeals, applications to the Mental Health Tribunal, certain family cases (mostly involving domestic abuse) and housing issues, amongst others, you can get legal aid. This is however means tested, which means looking at your gross and disposable income, savings and property ownership. Savings over £8,000 will exclude you from legal aid and this includes any part of your house you may own, such as the part of your mortgage which has been paid off (2). There aren’t many who will meet these requirements!
Alternatively, the Citizens Advice Bureau offers advice and sometimes representation in cases; although due to funding cuts many are closing across the country. Other organisations such as Bar Pro Bono Unit or FRU (the Free Representation Unit) can put you in touch with lawyers or would-be/ trainee lawyers who can take on a case for free. Many universities run volunteering schemes for law students, and other charities will take on cases too. In employment cases your union will usually consider representing you.
Aside from any concerns of getting a representative, there are costs involved in just filing a case with a Tribunal. Most controversial has been the relatively recent rise in the cost of filing an employment case, with a down payment of anywhere between £160 and £250 required by an applicant, and an extra £230 to £950 if the case goes ahead. Can it really be said that everyone has a right not be unfairly dismissed on grounds of race if they have to pay hundreds of pounds just to get a fair hearing of the case? It has been noted that the number of tribunal cases has dropped since the new rules came into place in August 2013 (3), and it is no wonder. The trades unions have (quite rightly!) pointed out that adding a fee for bringing cases doesn’t just prevent the ‘vexatious claims’ that can ruin small businesses and put them off sacking certain employees; it also cuts out those with a genuine complaint and puts power in the hands of businesses to sack people on discriminatory grounds without a claim being at all likely. Looked at alongside the government’s constant concern with ‘red tape’ for businesses, we might think that the main concern here is about saving costs for businesses, rather than trying to balance this with the other important aim of protecting workers’ rights. There is not much subtlety, or understanding of the real world, in filtering out ‘bad’ claims by saying that those with ‘real’ claims will pay to bring them. Many people cannot afford to take that gamble.
Complexity and legalism
Assuming that you can bring your case but cannot get a representative, you’re on your own, and this is where the tribunal system has to work well in order for the ideal of ‘informal justice’ really to mean something. Either the individual has to be able to understand the relevant law fully and present his or her case to the judge in light of that law, or the judge has to get involved in asking questions of the parties, discovering the facts and applying the law him- or herself so as to be able to decide the case. Many tribunals are meant to be ‘inquisitorial’ – the judge asks questions and finds out information from the parties rather than being ‘adversarial’, where the judge can only decide which of the two arguments put forward is best.
Genn’s study into representation and advocacy in tribunals (4) demonstrates how complainants can find the process confusing and overly formal, despite being told that the tribunal was simply a place to put forward their story. One complainant said during an interview:
“It’s the law that makes things difficult, and my case isn’t in law.”
The problem is of course that these cases are still legal, and they have to address legal points, including complex pieces of legislation. Employment and social security law (to take two examples) are exceedingly complex, and judges in tribunals have to make their decisions based on the law – they are not in a position to make compromises or take a decision based simply on what seems fair. This is not quite the ‘informal justice’ you might hope for if you are representing yourself in a tribunal. It is telling that your chances of success in a tribunal case are much improved by having a representative who can get the important information from you beforehand, and present it to the judge in a coherent way. In immigration cases the rate of success goes from 20% to 38% if you have a representative, and in mental health cases from 20% to 35%. It’s also telling that your chances of success are also affected by which judge presides over your case. An inquisitorial system only works if the judge is willing to ask questions, whereas some will take the view that they should act like ‘normal’ judges who just take the arguments as they are given. And yet, are we asking too much that a judge should ask questions of an applicant (or both parties, in employment cases, if the employer doesn’t have a representative), find the relevant facts, apply them to the law, and then make a decision? There’s a reason why we have lawyers in the higher courts!
An example of an employment case
Perhaps the difficulties involved in all this can be shown from an example of an employment case I watched. The complainant (B) was claiming that he had been unfairly dismissed by his employer, following allegations of a serious breach of health and safety rules in the bakery he worked in (urinating in the workplace sink). He was represented by a man who appeared not to be a lawyer nor a trade union representative. His employer, a known chain of stores, was represented by a barrister.
B clearly didn’t understand the law – and why would he? He just thought it was unfair that he had been dismissed when he said that he had not done what he was accused of doing. The legal question is not however whether he was guilty of gross misconduct, but whether the company could reasonably believe that he had done this, based on a reasonable investigation. The employer had requested that B attend a disciplinary hearing, which he had not attended. B even admitted in the tribunal that this failure to turn up meant it would be reasonable for the employer to think he was guilty of gross misconduct. And yet he said he did not attend the meeting because his (apparently unqualified!) representative told him not to, in case it harmed his case!
Regardless of whether B won his case (in fact, he had essentially admitted that it ought to fail!), it is important that he was not given the support at an early stage that might have resolved this issue quickly and even without the need to go to a tribunal. Had he received other advice he might have gone to his disciplinary meeting, or had a better chance at the tribunal hearing. The judge did an excellent job of trying to understand the fact situation, but B’s lack of legal knowledge caused him trouble during the disciplinary process and in the tribunal. A skilled representative may have made a big difference or at least advice beforehand from somebody who was legally qualified.
It is a favourite pastime of many people to criticise ‘fat cat’ lawyers, but they perform a crucial role during court proceedings. As long as Parliament keeps passing complicated laws, we are going to require trained lawyers who are available to anyone who needs them, at an affordable or subsidised rate. We might think it a good idea that we have more informal processes for smaller cases; they save on money, should make applicants more at ease and should mean that cases are dealt with as quickly as possible. However, for this to work we need simple legislation, helpful judges who play an active part in proceedings and a system whereby advice and representation is available where it is needed. It is questionable whether any of these three are achieved to the extent that we can say that individuals have a real chance of vindicating their rights in a tribunal. This is not to say that the professionals (and volunteers) involved do not do the best they can; this is simply too complex a system for the level of funding available. Are we simply putting certain cases out of sight and mind? Is this just poor justice for the poor?
(1) See the Citizen’s Advice Bureau’s useful list athttps://www.adviceguide.org.uk/
(2) Information on eligibility for legal aid is also available at the above link
(4) Genn, ‘Tribunals and Informal Justice’ 56 Mod. L. Rev. 393 (1993)