Access to Justice 2017: Liverpool

About the Conference

by James Harrison

The meeting was opened by the chair with a summary of the current landscape of access to justice at work. This included the recent election of Donald Trump as the US president (who has a history of contempt for his own workers’ rights), who at the time was preparing to renew the US special relationship with the UK through Theresa May. The introduction also summed up a lot of the consultations which the government have been holding with regard to their changes on employment rights and access to justice. The full summary can be downloaded here

Stuart Robertson, NW Regional Employment Judge

Stuart’s presentation was on ‘Access to Justice in the Employment Tribunal’

Stuart started by highlighting a 67% fall in single employment tribunal claims since fees were introduced in 2013. In a paper presented to the meeting by himself and Judge Brian Doyle, it describes how in their experience, a lot of low financial value, high merit claims have now disappeared, whilst high value cases do not appear to have dropped that much.

The Ministry of Justice (MoJ) has been “salami-slicing” the tribunals resources with a mind to making £1bn worth of savings over the next 6 years. These were primarily to estates (with court systems consolidating their premises to save or generate money), IT system updates and procedure changes. The government are looking into implementing online tribunal claims where decision on these cases would primarily be made by caseworkers instead of employment judges. It sounded from Stuart’s presentation as thought the justice system as a whole is being radically changed. He was confident that some of these changes were necessary and long overdue, such as updating their IT systems to make the court system run more efficiently, but other points about automation of claims and some cases getting heard by caseworkers, raised concern with the audience that claims could be met with a “computer says no” response, to bar workers from getting justice.

Stuart did state that it was sometimes possible to take cases to tribunals through provisions sometimes present in people’s home insurance.

Download presentation

Download accompanying paper

David Sorensen, Morrish Solicitors

David’s presentation was on ‘The attack on access to justice’

This presentation offered a wide overview of what is happening to access to justice across the board. It defined access to justice as “Fundamental rights, freedoms, a fair trial and the rule of law”. Without the means to understand the law and to enforce it, the right to justice at work is either meaningless or a paper right only.

David covered various quotes in history of interest when reflecting on the current political changes to the justice system. He successfully highlighted the major attacks and harm done to the justice system within recent history, including describing the impact of court fees, closure and locality of courts, legal aid cuts, lack of lawyers and advice centres and the cost of lawyers in personal injury claims now essentially going up. He came back on Stuarts earlier point regarding accessing the courts through funding from person home insurance. With home insurance companies, sometimes the same insurance companies backing the employer at court (who pays them considerably more for their services) are the same ones funding your legal representation. It raises the question whether they would act as professionally and genuinely get you the advice and legal representation you would expect throughout such a stressful and complex process. He also went on to paint a picture of the impacts on our society since the changes to the justice system started. With rises in homelessness and suicides and reductions in domestic abuse cases and children in dangerous circumstances. This painted a dystopian picture for workers’ rights and the rights of the vulnerable in our society. David went on to suggest avenues for pushing back on these changes, such as using the Human Rights Act and discrimination laws to fight it. Also he suggested engaging with the House of Commons committee currently looking at Access to justice, as well as a number of Labour party reviews to engage with.

Download presentation

Phil Liptrott, Thompsons Solicitors

Access denied for injured workers, #FeedingFatCats

Phil described how the removal of free affordable independent legal advice in personal injury claims is removing access to justice for 95% of injured people including those injured in work. He also described in detail how recent changes to personal injury small claims have effected workers. With the small claims limit raising from £1,000 to £5,000 this means workers will be unlikely to take claims if they have to pay their legal fees out of their own compensation, especially if the legal costs are equal to or less than the amount awarded in compensation. To put this in perspective, Phil stated that this change will cost the government treasury £135 million every year, as well as costing the NHS £9-13 million every year, whilst insurance companies receive additional £200 million profit every year as a result of no longer having to pay out for a huge amount of personal injury cases.

Phil explained how the government included this change as part of a manufactures P.R. “fraud crisis” in motor claims. This was under the guise of whiplash, but the real scope of this change is much wider than whiplash cases, its about taking away funding for all injured people, at work and in general. The government have postured that this will save motorists £40 per policy, but the government have also stated that they will not be enforcing this, leaving the door open for insurance companies to simply soak this up as excess profit.

Phil finished by saying that a number of groups have opposed this change, including the Transport select committee, Scotland’s laws and also Lord Justice Jackson. Thompsons solicitors have also been promoting a #FeedingFatCats campaign to try and get this change u-turned and he encouraged all attendees to take a look at the website, follow the @FeedingFatCats twitter account and also sign the petition.

Download presentation

Damian Warburton, ACAS

Is mediation working?

Damian started by saying that conciliation with ACAS was not mandatory. He said employees must contact ACAS before submitting a claim to tribunal, but that there is no obligation on either employee or employer to actively engage in conciliation. If the employee just wants the ACAS certificate to lodge the claim, then they are well within their rights to do so. In reality only 17% of employees and 10% of employers decline conciliation. Of course, a tribunal may look more, or less favourably on non-engagement in conciliation, depending on the merits of the case, but that is not the same as mandatory conciliation. By ACAS figures, early conciliation resolves 30% of all cases before they would get to tribunal.

Damian pointed out that post-claim conciliation was found to be very useful by 60% of employees and 45% of employers, making the case that ACAS are fulfilling a useful role in the process of resolving cases later on in proceedings too. He stated that conciliation is a free process and that claimants who cannot afford a hearing can sometimes still get a settlement via conciliation through ACAS, especially in low value claims such as unpaid wages. Damian finished by saying that conciliation is a good way to test your case before you get to court. It allows you to flesh out the detail and discuss the merits with an impartial party (ACAS), as well as increasing the likelihood of a mutually agreeable outcome for both sides. The feedback from the audience was that ACAS is incredibly useful before and during taking a case to tribunal because they do allow you to test the merits of the case in a safe environment and also because early conciliation allows the tribunal deadline of 3 months to be extended, essentially pausing the clock whilst early conciliation is ongoing.

Download presentation

Tony Conway, PCS Industrial Officer

Transforming justice – the view of HMCTS staff

Tony laid out a very succinct landscape of exactly what has been happening to the courts system from a PCS members perspective and a wiser perspective since the cuts started. This specifically detailed court closures, outdated IT systems being updated and the potential for and the concern regarding virtual courts. Tony also detailed a number of issues PCS is currently in an industrial dispute with HMCTS over. The PCS view is that access to justice is being denied for those who are either just about managing financially, or who are in poverty and simply cannot afford it.

Tony brought a number of papers outlining the information and the PCS case in more detail. These papers can be downloaded below.

Download MP briefing

Download executive summary

Download PCS commentary

Download PCS consultation response

Jeanette Sainsbury, UNISON

Access to justice: A UNISON perspective

Jeanette started off by discussing the UNISON case against The Lord Chancellor on employment tribunal fees. She outlined UNISON’s initial stance that the fees were ineffective, indirectly discriminatory and also not in line with the public sector equality duty. She went through how each of these principles were tested at court and gave context to the case as it progressed. UNISON are currently awaiting a supreme court hearing on their appeal to the case in March this year.

Jeanette then went on to discuss UNISON’s homecare workers project. This is a piece of work that started because of the fragmentation of the workforce in home care and also as a result of local authorities unilaterally putting staff on zero hours contracts and not paying them for travel time between visiting the people they support. This resulted in what UNISON believe was an unfair deduction of wages. Some care homes were even ludicrously telling staff that they were not allowed to keep copies of their work rotas because it could be a “breach of data protection”. This made it very difficult for staff to keep an eye on whether they were being paid the right amount of money for the work they were undertaking. She outlined the case of Whittlestone v BJP Home Support Ltd, where at ET the tribunal decided that the travel time was incidental and shouldn’t be paid by the employer. However at the EAT this got overturned, as the assignments were in the control of the employer and it was mandatory for the care worker to visit all these sites in the same working day in order to fulfil their contract.

Jeanette described the historical and current causes of this situation, as well as the challenges faced in the case. She finished by stating that in this one project, care workers have been collectively cheated out of £130 million. Also there has been a cost to the community because care standards have slipped due to the time limitation placed on staff during care visits, as well as a lack of continuity of care due to increased staff turnover rates and decreased frequency of visits, all of which are financially motivated.

Download presentation

David Renton, Garden Court Chambers

What price? Access to justice in a world of social media

David started by framing the debate around whether justice can be accessed by the majority of people who need to use it or not. He discussed the Briggs review of the civil court structure. There is the option of online courts, but David stated the case for and against, providing that people do have access to a fair hearing and recourse if their case is not heard on fair grounds. He stated that online courts could effectively act as a triage system where both sides could upload their case and supporting documents, simplifying the procedure of application and submission of evidence. Also a series of questions would furnish the case with some of the key facts, potentially in a more succinct fashion. Presenting a case in this way may seem appealing to some people who cannot afford legal representation. David made the claim that Ebay resolves more disputes between buyers and sellers through its IT system than the English courts do. David pointed to the ‘Reforming the Employment Tribunal System’ consultation which took place between December 2016 & January 2017. This consultation took questions on the viability of an electronic tribunal system.

He then made the case that, although we should be cautious about online tribunals blocking justice, if used correctly they could administer justice more efficiently. At present fees are wrong in principle and too high, there is an ‘inequality of arms’ with employers being able to afford the best legal representation, the tribunal system was meant to be an informal way to resolve employment issues, there are also low success rates in the current court system. He presented that there could be radical overhaul of the tribunal system with IT playing a part, with video or face to face hearings being reserved for extremely complex cases. David then summed up by pointing out what we should be looking for when assessing whether the justice system is working. He also pointed to some ideas to solve the problems in access to justice in the immediate situation. Details of these can be found in his papers below.

Download presentation

The chair closed the session by commenting that access to justice is a fundamental right that was hard fought for by generations of trade unionists. If the legal route to seek justice from our employers wrongdoing, and is taken away from us then the trade union movement will be forced into industrial disputes to seek redress. This will not be popular with employers This will become harder with the implementation of the Trade Union Act, however it is not impossible. Being a trade unionist was not always legal, nor was taking strike action in some points in history. Trade unions may decide that resisting unjust laws like this is the way to get workplace rights back. That is of course their democratic decision to take. No matter where we find ourselves, the Institute will be doing what it does best, to arm trade unionists, academics and labour lawyers with the facts they need to advance the informed case for workers’ rights.

Speakers

Stuart Roberton, North West Regional Employment Judge
Access to justice in the employment tribunal
Download presentation

Download paper

David Sorensen, Morrish Solicitors
The Attack on Access to Justice
Download presentation

Phil Liptrott, Thompsons Solicitors
Access denied for injured workers
Download presentation

Damian Warburton, ACAS
Is mediation working?
Download presentation

Tony Conway, PCS Industrial Officer
Transforming Justice – the view of HMCTS staff
Download MP briefing

Download executive summary

Download PCS commentary

Download PCS response to consultation

Jeanette Sainsbury, UNISON
Access to justice: A UNISON perspective
Download presentation

David Renton, Garden Court Chambers
What price? Access to Justice in a world of social media
Download presentation