“Work” means employment, contract work, a position as a partner, a position as a member of an LLP, a pupillage or tenancy, being taken as a devil, membership of a stable, an appointment to a personal or public office, or the provision of an employment service; and the references in subsection (1) to offering a person work are, in relation to contract work, to be read as references to allowing a person to do the work.

This is, apparently, the terminology used for the Scottish equivalent of pupil barristers. But you can bet there’ll be a fair bit of head scratching by lawyers and HR staff when reading this section. A stable, if you were wondering, is a Scottish chambers, like this one. Apologies for this article to Usefully Employed readers North of the border.

EDIT:- Amazon have now, sadly, put the price up to £81.09 including delivery, which still represents a saving.

The episode can be downloaded as a podcast for the next week, here:

http://www.bbc.co.uk/podcasts/series/moneybox/

Requirements of the agreement

• The agreement must be in writing;
• The claim or proceedings must be identified;
• The maximum percentage of damages which can be specified as fees is 35% including VAT;
• The circumstances must be set out by which any amounts become payable as fees must be identified – this will include provisions, for example, as to whether the percentage includes counsel’s fees, and the circumstances in which other fees become payable. This might include where the client refuses reasonable offers of settlement, or the representative is forced by the client’s conduct to terminate the retainer.
• The agreement must state the reasons for setting the percentage recovery at that level – this may be a moot point, as many representative firms will apply a blanket 35%. This does provide an area where representatives can compete with one another.

In addition, the following information must be given in writing (this will usually form part of the client care letter:

• Everything stated above;
• How the client might seek a review of the costs, fees and expenses incurred, and the circumstances in which they can do so;
• The services provided by ACAS;
• Whether other methods of funding are available, such as legal aid (unlikely), legal expenses insurance, pro bono representation or trade union representation. A solicitor would normally be under a duty to explore funding methods with the client in any case. I would say anecdotally that the legal expenses insurance policies that many of us have as part of our home insurance are underused, many people never think to enquire if their employment claim will be covered.
• The regulations state that where the agreement is terminated, the representative can charge costs and expenses, but that the agreement may not be terminated:
• by the client – if liability has been admitted, settlement has been agreed, or it is less than seven days before the tribunal hearing;
• by the representative – at all, unless the client has behaved or is behaving unreasonably.

The former seems sensible, as it prevents a client taking advantage of an admission of liability, good settlement offer, or the preparation work undertaken for a tribunal if he realises that he will pay less if charged on an hourly basis rather than as a percentage.

The latter seems to contain a glaring omission, which is that the representative must surely be able to terminate the agreement if it is under a professional duty to do so. There are a range of circumstances in which the solicitor is under a duty to stop acting which would not be attributable to unreasonable behaviour (such as a conflict of interest which had gone undiscovered), and the contractual position that would result is now unclear. Could frustration be argued?

These regulations do not enable contingency fees to be charged in “contentious” proceedings, such as personal injury claims or, interestingly, the Employment Appeal Tribunal. Barristers are, of course, still prevented by their professional rules from charging a contingency fee on any type of work. This may change in the future.

It shows that the number 0f claims referred to them by the Employment Tribunals fell overall from 151,249 in 2007/2008 to 138,535 in 2008/2009 (that figure refers to claims to particular jurisdictions, rather than the number of ET1s). Six thousand less of these cases included the Equal Pay jurisdiction than last year, but the notes immediately quash any enthusiasm about that figure however:

Very few equal pay/sex discrimination cases brought against NHS employers are included in these figures because they have not been passed to Acas for conciliation by the Tribunals unless the parties have requested conciliation or there appears to be a reasonable prospect of success in conciliation. In addition, Acas received 49,675 cases for conciliation where no case had yet been submitted to an Employment Tribunal, but where one was likely to be if the matter was not resolved. The vast majority of these cases (47,290) related to potential claims against local authorities in regard to equal pay.

Notwithstanding that, Equal Pay claims still constitute a third of the primary claims behind issued proceedings in the tribunal. In 2007/2008 28,767 claims were referred containing a claim under working time regulations, but the following year this fell to a mere 17,844. Claims of unfair dismissal however rose from 43,241 to 55,000, apparently an exact figure. If anyone can provide some interpretation or reasoning behind those changes I’d be interested to hear it.

Another statistic is that Acas answered their national helpline 726,306 times throughout the year, and each one of those calls resulting in an answered query cost it £12.12. Of course, the recession didn’t really start to claim a significant number of jobs until the beginning of 2009, so one shudders to think at the volume 2009/2010 will bring if the economic downturn persists in causing redundancies throughout the year.

Acas’s Pre-Claim Conciliation service also launched in April 2009, where free conciliation is provided between employer and employee before proceedings are issued. It seems to have been a success, over half of conciliations being successful, and each of those saving everyone (both parties and the taxpayer) a total of around £1,000.

I’d be interested to hear your views on Acas at present, it’s been a couple of years since (as a solicitor) I was routinely on the phone to conciliators over claims, as a barrister I tend to pick up cases before conciliation starts or after it’s failed. I remember finding the service excellent mostly, but is it being stretched by volume and standards slipping? Let me know.

Link to Acas Annual Report & Accounts 2008/09

To celebrate his anniversary Daniel launched a charity appeal to try to raise £10,000 for the Starlight Foundation. He’s achieved it in a very short space of time, but you can still donate at http://www.justgiving.com/danielbarnett2009.

Indeed, the language of Article 6 refers to ‘determination of civil rights and obligations’ when referring to the need for an impartial tribunal, and so on. Some new areas risk blurring the lines: there are now provisions for workers to be legally prevented for working with children, in schools, and with vulnerable adults where concerns over their behaviour has come to light. In this situation the effect of the disciplinary proceedings can be said to have consequences that go further than the relationship between the employer and employee. 

In the case of G, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin), a teacher was accused of sexual impropriety with a 15 year old, involving a breach of trust. He was found by a disciplinary panel to have been in breach of trust, and the case referred to the Secretary of State to see if a direction should be made forbidding him from working in education. He was refused legal representation at the meeting. He challenged the validity of the meeting by judicial review, claiming that under Article 6 the proceedings were effectively criminal proceedings given the gravity of the allegations and the consequences of adverse findings. In the alternative, he claimed that even were the proceedings civil then they were of sufficient seriousness to require a right of legal represenation under article 6. The High Court found:

In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant’s future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient.

It is important to realise that direct enforcement of human rights legislation, and judicial review proceedings at all for that matter, is only possible against public sector employers. Even so, this ruling opens the way for a considerable widening in what procedural safeguards must be put in place for more serious disciplinary cases.

• is inappropriately one-size-fits-all, with the same requirements of High Street solo practices and of magic circle firms;
• that the regulation they practice is more suited to the former.

Jordan Furlong’s Law 21 blog looks at a report produced by the Legal Services Policy Institute which contemplates complete divergence, with separate regulation on both a firm level and an individual lawyer level. This leads to the unattractive prospect of two tiers of solicitors emerging, one qualification associated with “big” law, and one for the high street sector. The latter will inevitably be stigmatised as somehow inferior, and as there huge areas of cross-over between the work of High Street and large firms (not least employment!) an unfair differentiation in perceived quality will result.  

http://www.law21.ca/2009/03/03/the-evolution-of-lawyer-regulation/

Toulson LJ states:

It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons.

1. First, the majority of legislation is secondary legislation.
2. Secondly, the volume of legislation has increased very greatly over the last 40 years. The Law Commission’s Report on Post-Legislative Scrutiny, (2006) Law Com 302, BAILII: [2006] EWLC 302, gave some figures in Appendix C. In 2005 there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.
3. Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.
4. Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic.

That case concerned confiscation orders, but let’s apply the principle to employment law. Remember, if you’re an employee presenting a case in the employment tribunal you do not have recourse to any legal aid. The principle is that it is a forum in which you can represent yourself. But can you look up the law that applies to your case? The only port of call for Joe Public is the government’s own information sites, OPSI and the Statute Law Database. So our imaginary Claimant looks up the Employment Rights Act 1996, in which most of our employment laws are found. But what does he find?

So we have a copy of the Act, but without the last five years’ worth of updates. Indeed, the SLD version even goes straight from s98 to s99 – but as we all know this particular Act now sports a shameful ss98ZA – 98ZH, s98A and s98B. Hilariously, the dispute resolution regulations will have been introduced, failed, and been repealed without the SLD text being troubled at any point.

So the brief answer is that the unrepresented Claimant can’t do any meaningful legal research using free resources. Given the complexity of the law, the availability of costs orders where a claim is misconceived, and the unavailability of legal aid, I wonder if there are Article 6 implications. Refusal of legal aid where it is crucial to the presentation of a party’s case can constitute interference with Article 6 rights. One even has to wonder whether ignorance of the law being no excuse is compatible with our legislation being impossible to decipher. The now oft-quoted preface to Archbold 2009 states in relation to criminal law:

It has been a recurring theme of the preface to this work that there is far too much criminal legislation. The willingness of the Labour Government to continue its practice of legislating by trial and error has shown no signs of abating even in its eleventh year in office… The state of the criminal statute book is a disgrace. The Criminal Justice and Immigration Act 2008 is the usual hotchpotch of measures, with no theme, with much of the detail tucked away from close scrutiny in the schedules, and consisting in large part of textual amendment to earlier legislation. Much of the amendment is by way of undoing this Government’s earlier legislation.

This issue is a timebomb. Concerned practictioners and campaigners could do worse than visit Nick Holmes’ page for the Free Legal Web project.