Official Report (Hansard)
Date: 04 March 2009
Workplace Dispute Resolution
4 March 2009
Members present for all or part of the proceedings:
Ms Sue Ramsey (Chairperson)
Mr Robin Newton (Deputy Chairperson)
Mr Alex Attwood
Mr Paul Butler
Mr Alex Easton
Mr David Hilditch
Mr William Irwin
Ms Anna Lo
Mr David McClarty
Mrs Claire McGill
Mr Mark Beal )
Ms Caroline Maguire ) Law Centre (NI)
Mr Daire Murphy )
The Chairperson (Ms S Ramsey):
Members will recall that we have had a number of presentations on the subject of workplace dispute resolution. I welcome the representatives of the Law Centre, who are here to give us an insight into the legal and policy issues that are involved in workplace disputes. Thank you for coming here today to give evidence and for providing written submissions. The Law Centre is also represented on the steering group that is considering the issue of workplace dispute resolution.
Mr Mark Beal (Law Centre (NI)):
Good morning. I thank the Committee for inviting us to give evidence on this issue today. I am accompanied by Ms Caroline Maguire and Mr Daire Murphy, who are the employment caseworkers at Law Centre.
The Law Centre aims to promote social justice through its work. It is a not-for-profit agency that works to advance social welfare rights in Northern Ireland. It does that through casework, training, policy work and publications. One of the Law Centre’s main areas of work is the provision of employment advice. Our cases are generally referred to us by other advice agencies, due to the complexities of the individual cases. With regard to our employment casework, it is worth noting that we act for employees only; we never represent employers. We also have regard to whether an individual has access to alternative representation, such as through a trade union, or the Equality Commission in cases of discrimination. Where that is the case, it is usually not appropriate for the Law Centre to represent.
The Law Centre undertakes casework in order to provide advice and representation, including representation before industrial tribunals. One of the main ways in which we provide advice is through our advice line. We get a range of calls from across the voluntary sector, from the Labour Relations Agency (LRA), from individuals, and from the constituency offices of elected representatives who wish to advise and assist a constituent — that is something that we are always happy to try to provide.
In the summer of 2006, the Law Centre established a policy unit, the purpose of which was to provide informed comment on public policy and legislation. That is done through written submissions, such as our response to the original Department for Employment and Learning (DEL) pre-consultation and face-to-face meetings such as this morning’s session. We also organise events in order to highlight particular issues. In October 2008, we organised a workshop to which we invited DEL to discuss the dispute-resolution proposals with representatives from advice organisations from across Northern Ireland. We are also able to take forward issues that are brought to us from other organisations and individuals. One of the pressing issues that is most often raised, in respect of our policy work on employment, is the erosion of the rights of employees and how to safeguard those rights.
We also aim to increase the understanding of employment rights through training events and through publications, including our encyclopedia of rights.
Our work is informed by the situations confronting our caseworkers, and it is those experiences and issues that inform our comments. It is that mix of policy, supported by the experience of our casework, that we hope the Committee will find useful.
We think that it is timely to look at the issues around workplace dispute resolution. As the Committee noted back in December, the credit crunch means that everyone is worried about unemployment and its effects. We have seen that in the number of calls that our employment caseworkers have received on our advice line. In each of the last 12 months, there has been an increase in the number of pieces of advice that were given in the same month in the previous year. In the last three months of 2008, there was a 40% increase on the same period in 2007.
In our evidence we have identified those areas in which our experience suggests that the current system works well, the areas that work less well, and the problems that the forthcoming consultation could address. One of our concerns is that this opportunity is taken to devise a system of dispute resolution that meets, most fully, the particular needs of Northern Ireland. One of the distinguishing features of the Northern Irish economy is its proportion of small enterprises. It is important for employees, as well as employers, that the system adopted is not overly complex. We accept that the current grievance procedure is overly complex and in need of reform. However, we feel that there are good reasons to retain the statutory disciplinary process. It is our concern that change in that area would lead to more uncertainty at a time when the benefits of that system — its clarity and familiarity — are needed the most.
I will hand over to my colleague Daire Murphy, who will talk about the dispute resolution procedures. After that, Caroline Maguire will talk about alternative dispute resolution. We will wrap up the evidence by discussing the issues around access to justice.
Mr Daire Murphy (Law Centre (NI)):
Thank you. As Mark has indicated, the dispute resolution regulations divide fairly neatly into two distinct procedures — the grievance procedure, and the dismissal and disciplinary procedure. We strongly believe that those should be looked at separately.
Unfortunately, the regulations have now got such a bad name, so widely, that the automatic reaction has been to scrap the lot as was done in England. We believe that that all-or-nothing approach could be precipitate and restrictive. We should look at whether there is an option to keep the positive aspects of the system; we should not throw the baby out with the bathwater.
Law Centre (NI) initially opposed the introduction of compulsory grievance procedures as it believed that they would operate as a bar on access to justice for claimants. In our experience — I think in everybody’s experience — those fears have been realised. Claimants, or potential claimants, often find themselves having to try to bring a claim without legal assistance, due to factors that we will discuss later. They are either ignorant of the statutory procedure, or baffled by the complexity of the statutory procedure. As a result, claimants often make mistakes in framing or bringing forward their grievance, which results in their claims automatically not being allowed to go forward, no matter how meritorious.
Given some of the comments that they have made, it appears that the tribunals and the courts share much of that concern. They have tried to interpret the statutory grievance procedure as widely as possible in order to allow claimants to bring their claims forward. However, there are draconian consequences for claimants in respect of not following grievances, and those act as a barrier to justice.
There have also been serious concerns for employers. Employers have, understandably, taken a very safety-first attitude to complaints prompted by the procedures, because there are consequences for employers if they do not follow procedure, such as increased damages and rulings going against them. That has led to formality and legal escalation at the very start of the process, which, paradoxically, has lessened the chance of the internal resolution that the procedures were originally intended to promote. At the first hint that an issue has arisen, parties become bound into the statutory model, and there is less scope for any informal resolution.
I do not intend to analyse the operation of the grievance procedures any further as I think that there is widespread consensus that they should be removed. We believe that anything that replaces them should be less mechanistic and should not set up bars on access to justice, while encouraging resolution of disputes within the workplace.
Turning to the disciplinary and dismissal procedures, the dismissal procedure, in contrast to the grievance procedure, is relatively simple and straightforward in operation. In essence, employers have to give employees a written notification inviting them to a meeting and letting them know what the disciplinary issue is and that they might be dismissed as a result. The meeting must then take place and employees must be afforded an appeal.
We submit that none of that imposes a particularly onerous burden on employers; it simply sets out the minimum procedural fairness that one would expect when a drastic sanction such as dismissal is being contemplated. Indeed, before it was codified in the statutory procedures, the courts spent many years developing case law in exactly that direction.
In the modern world, someone’s job is an extremely important and defining aspect of that person’s identity, and the loss of that job may have correspondingly serious and sometimes devastating effects. That is even more likely to be the case in the current economic climate. Job losses can cause people to default on their mortgages and can have a profound impact on families and communities. Therefore, given the serious consequences, it seems to me that a decision to dismiss should not be taken lightly.
As with many other minimum statutory rights, the statutory dismissal procedure simply sets out a minimum standard of conduct that employers should follow. If they follow the first step of giving notification of the meeting, that avoids an ambush scenario occurring in which employees are taken by surprise and are, therefore, not able to set out their answer to the case. The meeting, which is the second step, allows employees to have their say and make their representations and, from the employers’ point of view, it also allows the issues to be thoroughly ventilated. That avoids employers making a decision that is not based on the full facts or making a knee-jerk reaction that is later going to result in their finding themselves in legal jeopardy. Having an appeal stage is simply in accordance with the rules of natural justice — that is, that there has to be someone to whom you can appeal a decision.
Although employers and employers’ representatives might instinctively baulk at the retention of the disciplinary procedure, we believe that they would find it difficult to argue that these steps are not straightforward and fundamentally fair. To remove what is a simple and just rule and replace it with uncertain guidelines is likely to send out entirely the wrong message to employers, which might lead to less adherence to procedures and more procedural unfairness. That could ultimately result in a greater number of unfair dismissals and of employers being sued for unfair dismissal.
Therefore, although employers might not like the compulsory procedures, we believe that the procedures ultimately benefit employers as much as, or even more, than employees because by following them, employers will significantly diminish their exposure to unfair dismissal claims. The procedures are now fairly well understood by employers, and their awareness of what they should do when they are contemplating dismissal is now at an all-time high. That has only come to pass because there has been clear codification and punitive sanctions. The procedures have now been in place for some time, and we believe that they have bedded in fairly well. Introduction of a new system is only going to confuse matters as employers will need to be educated again from the start as to what their obligations are now.
I hope that we have been able to set out a case that retention of the statutory dismissal procedure benefits employers as a class. It is particularly applicable in Northern Ireland, as there is such a high proportion of small employers in the jurisdiction. Small employers are much less like to have set disciplinary procedures of their own, quite understandably, and having awareness of clear statutory procedures will enable them to offer employees basic procedural fairness. That will avoid dismissals that are based on incomplete or incorrect facts and will reduce the possibility that employers will be sued or found liable for unfair dismissal.
My colleague Caroline Maguire will be speaking on alternative dispute resolution (ADR), which we, as an organisation, support strongly. One of the reasons that has been advanced for getting rid of the regulations as a whole is that it has often been said that the system deters recourse to other options, because of the formality of the process. We submit that that is very true of the grievance procedure, where potentially resolvable issues are at stake that might benefit from alternative dispute resolution being employed. However, the disciplinary procedure applies only when the employer is contemplating dismissing someone, so it is does not apply to internal warnings or any other internal matters that might be resolvable. It is the final step before the person is going to be sacked. When someone is dismissed, it is final, irrevocable and drastic. In those circumstances, it is entirely appropriate for a formal procedure to govern that stage. In that situation, the least that a person who is about to be dismissed can expect is that a formal, proper procedure should be followed. On the basis of all of that, we believe that there is a clear case for the retention of the statutory dismissal and disciplinary procedure.
My colleague Caroline Maguire will talk about alternative dispute resolution.
Ms Caroline Maguire (Law Centre (NI)):
As Daire has said, t he Law Centre is strongly in favour of alternative dispute resolution, and we want to see more extensive use made of ADR generally. We gave our response to the DEL pre-consultation almost a year ago. I read it again as preparation for today, and it struck me that the need for ADR is possibly even more pressing now in the current economic climate.
There are two reasons why the Law Centre feels that ADR is an important tool for dispute resolution. The first is that our client base — employees, workers — is very poorly served by the current tribunal system. That is notwithstanding the overriding objective of the tribunals system to put the parties on an equal footing. In reality, most employees who go to tribunal are unrepresented and really struggle to participate fully and assert their rights before the tribunal.
We also recognise that the complexities of employment law, and of tribunal procedure, are difficult for the small employers as well. They face the cost and expense involved in negotiating the tribunal procedure. The benefits of ADR for all parties are the speed and cost with which alternative dispute resolution could help resolve problems.
There is flexibility, too: ADR can produce flexible resolutions as opposed to tribunal decisions. A good example of that is a case that I was involved in recently, which resulted in a conciliated settlement. After many years’ service, my client had been dismissed on a Friday and told not to come back on the Monday. He received nothing by way of redundancy or notice pay. The employer was in financial difficulties. We managed to agree a conciliated settlement whereby the employer agreed to make a redundancy payment and the notice payment in staged payments over a few months. My client recognised the difficulty that the employer was in and was prepared to take a practical stance to resolve the dispute. That is an approach that it would not be possible to take in tribunal proceedings.
ADR is also less confrontational, so it helps preserve the employment relationship where possible. In some circumstances, it has helped to restore that relationship. It is also informal and accessible, which is particularly beneficial for unrepresented parties, the majority of whom are employees.
Our second reason for supporting a more extensive use of alternative dispute resolution is that Northern Ireland would benefit from a more inclusive and co-operative approach to resolving workplace disputes generally. Recent experience with the advice line shows that there is a huge increase in the number of calls relating to workers being put on short time, laid off, made redundant and made to suffer wage cuts. It is clear to us that a large number of employers in Northern Ireland are facing severe financial difficulties and are struggling to keep their heads above water. It is striking that employees are angry because their rights have not been respected, and they come to us to assert their rights, but there is also a real recognition that their employers are in financial difficulty. The Law Centre feels that there is a missed opportunity on the part of employers to harness the knowledge of employees by communicating their difficulties early and having discussions with employees with a view to working together to salvage the business. Therefore, the promotion of earlier and better communication between employees and employers is a second benefit of ADR.
With regard to the specific forms of ADR, conciliation is provided by the Labour Relations Agency, which does an excellent job. We work with it a lot. We encourage our clients to use conciliation wherever it is appropriate. We would like to see an expansion in conciliation before claims are submitted. Although the Labour Relations Agency already provides a pre-action conciliation service, it is not well known or much used. The earlier that ADR begins, the greater the chance that relationships can be preserved or re-established. Therefore, we would like to see increased use of pre-claim conciliation. Unrepresented parties involved in conciliation are less likely to achieve as good a result as represented parties. In our experience, the majority of unrepresented parties are employees and workers.
We are very supportive of mediation, generally, which is particularly worthwhile for cases in which relationships have broken down due to interpersonal problems. To date, there has been limited use of mediation in Northern Ireland, so there are quite a number of issues about what form it should take. Therefore, we would strongly support a pilot scheme to investigate how mediation should be run.
Early neutral evaluation is another potential form of ADR, and it is slightly different because it is a means by which to weed out cases that do not have merit or have no defence. In relation to cases without merit, the Law Centre feels strongly that the issue of vexatious claims is very much overplayed. It is not our experience that there is a high number of vexatious claims. Previously, I worked in the Labour relations Agency, and it was not my experience there that there was a high number. We believe that one is as likely to encounter a respondent pursuing and defending a case that should not be defended as one that should not have been brought by a claimant. Early neutral evaluation focuses a party’s mind on the merits of his or her case and, if appropriate, one might then be able to persuade the person to seek an early resolution or to withdraw.
Arbitration is the final form of ADR that I wish to speak about, and we are strongly supportive of that. The Labour Relations Agency’s current schemes are very limited and hardly used at all, because one can only bring a case to arbitration if it is an unfair-dismissal claim or a flexible-working claim. In practice, most claims have something else attached, so it is difficult to identify claims that are suitable for arbitration. We would support a much wider use of arbitration. The key benefit is the speed and informality of dealing with cases that would otherwise go to tribunal. The reality for our client base — unrepresented claimants — is that it is difficult for them to succeed at tribunal. At the moment, the best option is often to seek some sort of resolution, short of going to tribunal.
That brings us back to the issue of access to justice, which Daire will address briefly.
Mr D Murphy:
As Caroline said, we are strongly in favour of alternative dispute resolution. In our advice-giving role, we always try strongly to promote resolution of disputes, short of legal proceedings. However, it is fundamental that people have an opportunity to enforce legal rights before an impartial tribunal or court. There has to be access to justice at the end of the day.
In our experience, there are major flaws in the current industrial tribunal system, which means that access to justice for employees and workers is often more theoretical than real. DEL’s review and the work of this Committee provide an opportunity to consider and address those problems. DEL has been very open and receptive in listening to our views. The Law Centre believes that this represents a chance that must not be missed to look at reform. We welcome DEL’s research into the experience of tribunal users. We believe that further research into the experience of those who are deterred from applying to the tribunal in the first place, or who drop their cases, would yield significant results.
The basic problem with the tribunal system stems from lack of advice. The Labour Relations Agency does a good job in providing advice within its remit, and we would welcome an expansion of the provision of impartial advice as recommended in the Gibbons Review. That would benefit both claimants and respondents. However, there is also a pressing need for the provision of dedicated, partial and interested advice and representation for claimants, which would allow them to determine at an early stage whether they have grounds for a case, and whether to proceed.
The Committee is aware that legal aid is not available to take claims to an industrial tribunal, and there is a significant lack of any tribunal representation service. The Law Centre has some very limited capacity to take on and represent claimants at industrial tribunal, but apart from the Equality Commission, which is limited strictly to the area of discrimination law and will not consider any other area, and the trade unions, who will take cases for their members, the vast majority of non-trade-unionised claimants who have an unfair dismissal case have, effectively, very little recourse to assistance.
In fact, because of the increasing complexity of employment law and the formality of the tribunal system, the traditional sources of assistance, such as trade union representatives, Citizens Advice advisers, other free advice centres and constituency offices, which have borne some of the brunt of this burden, are increasingly reluctant to take on industrial tribunal claims. Our experience is that they are certainly shying away from providing representation at hearing. Therefore, the outlook for claimants who need representation is steadily getting worse.
In conjunction with the lack of legal aid, there is the costs regime of the tribunal, which means that whether they win or lose claimants who engage a solicitor must pay their own legal costs. That also significantly discourages claimants.
The Law Centre believes that one useful way to illustrate the difficulties in the current system would be to consider the experience of a typical claimant trying to bring a case to tribunal. This model is informed by our experience and by that of our members — voluntary-sector advice agencies — on whom a lot of the burden falls. We put this case to DEL at the meeting that we organised.
The first point of call for people who believe that they have an employment issue is likely to be a solicitor. There, they are likely to learn that no legal aid is available to take their case forward. They must then consider whether they can afford to pay the solicitor themselves. In our experience, solicitors require a substantial lump-sum payment up front before they will contemplate taking on a case. For a variety of reasons, including the complexity of employment law, most general practice solicitors in Northern Ireland do not want to become involved in representing people at industrial tribunal.
However, it is not at all a realistic option for claimants — who may have just lost their job and who may be in financial jeopardy — to be required to put up a substantial lump-sum payment. The solicitor will also probably advise them that their legal fees must be paid, whether they win or lose the case. Given the lengthy nature of tribunal hearings, those fees are likely to run into thousands of pounds. In many cases, the fees will be more than the case is worth, or will eat up such a substantial portion of any potential award that engaging a solicitor is not a viable option. Therefore, unless claimants are highly paid, wealthy, or have the benefit of an insurance policy, most people find solicitors’ fees out of their reach.
The next thing that claimants are likely to do is to establish if there is any alternative source of assistance that will allow them to bring a claim. They are likely to turn to voluntary-sector representation, or try to go it alone. Unfortunately, voluntary-sector representation is extremely limited. In effect, it is confined to what few cases we, or other small advice agencies, are able to take on. At this stage, it is our experience that a lot of people are likely to give up because they feel that they will not be able to manage and that on their own they have little chance of success.
Considering the issue objectively, a person who tries to take a case but who does not have legal knowledge or experience of the courts is right to feel that he or she has a lower chance of success than if they were represented. Many people fall at that hurdle, but claimants who go on to lodge proceedings will often make errors when drafting or framing their complaints or will not be able to express themselves in the proper way. Down the line, that will lead ultimately to a considerable waste of tribunal time and resources in trying to resolve the issues.
Once a claimant has lodged proceedings, he or she is likely to start receiving legal correspondence from the employer’s solicitor. We do recognise that there is a difficulty for small employers as regards representation. However, realistically, it is predominantly claimants who are not represented before the courts who face difficulties. Employers have more resources, generally, and are more likely to have legal representation.
In our experience, an employer’s solicitor will often commence with a letter informing the claimant that the claim is misconceived, unreasonable, or has no prospect of success. The letter may warn or threaten the claimant that if he or she proceeds to tribunal, the respondent’s solicitor will apply for legal costs against them. The prospect of another legal bill is likely to have a further chilling effect on claimants and many are likely to be scared into withdrawing their claims at that stage.
The claimant is likely to seek advice from the Labour Relations Agency and will be put in touch with a conciliation officer, who performs a very valuable role and will try and give some limited advice. However, such officers are strictly limited in what they can do because they have to be impartial in order to carry out the conciliation role. They cannot give advice that is tailored to the needs of the claimant. In fact, the conciliation officer will often refer the claimant to another advice agency or to us.
The claimant is then likely to receive legal demands from the respondent's solicitor seeking further information and discovery. Those demands are likely to be very lengthy, containing detailed clauses and subclauses framed in opaque, legalistic language. A claimant who is unrepresented — and who therefore has no source of advice — will be required to identify and deconstruct complex legal and factual issues and give answers that will bind them before a tribunal. This will make sense to another lawyer, but to an unrepresented claimant, it is almost a foreign language, and they may feel that they are incapable of dealing with it. Once again, many are left feeling intimidated and overmatched.
Those claimants who persist and try to answer requests will often, understandably, fail to do so properly, or they will give incomplete responses. The next step is likely to be that the employer’s solicitor will refer the matter to the tribunal and seek an order, and possibly costs. The claimants — who are probably trying their best in the absence of legal advice — are then in peril of costs being awarded against them because of the necessity to have a hearing to deal with their failure to properly comply. Once again, they are under more pressure.
For those who persist — even at that stage — the prospect of having to go to court and handle the case themselves can, eventually, prove too much for people who are not lawyers. Before the hearing, it is likely that they will come under pressure to withdraw the case or accept what is termed a nuisance settlement — it would be common to offer them £500 to go away.
It is difficult for us to give specific examples because settlements are bound by confidentiality. However, in our experience, if are able to take on cases and represent claimants, it is common that they would receive a settlement that is substantially — perhaps massively — above what they would have received had they been unrepresented.
I do not want to tar every employer’s solicitor with the same brush: in many cases, they are simply doing their job. However, employer’s solicitors are often happy to let meritorious cases drag on through the whole process and right up to the door of the tribunal because they are confident that many claimants will lose heart and feel that the deck is stacked against them. In such cases, we submit, they are in fact right.
An unrepresented claimant who runs his or her own case is certainly very brave and perhaps foolish. Hopefully, from all that I have said, it is readily apparent that there is a significantly decreased chance of claimants being successful, due to the inequality of arms. Although the tribunal, as an impartial body, has the overriding objective of trying to increase, or promote, equality, from the functional perspective, there is little that it can do to rectify the problem.
On that analysis, which has informed our experience in advising claimants, many meritorious claims have been hindered or have not been pursued because of defects in the system. The number of withdrawals — cases that are settled early or dropped — should not be viewed as success. Rather, they should be seen as a reflection of the inherent unfriendliness of the current system for claimants. Further research into the experience of tribunal users would bear that out.
Some callers to our advice line have pointed out that there is no point in giving employment rights to people if they are left in the position in which they are unable to enforce them. People who proceed to tribunal run the risk of being labelled as vexatious claimants, as my colleague Caroline has already observed. Those, so-called, vexatious litigants are really the products of the working of the system. They have a genuine sense of grievance, but they do not get the full, proper legal advice they need in order to appreciate the merits of their case. Consequently, they end up being penalised by costs, orders, etc, because of their lack of understanding. Our view is that that is manifestly unfair.
If provision for a proper advice and representation service were made for claimants, the use of punitive measures by the tribunal against those who bring forward vexatious claims would be altogether more proportionate and justifiable. It could be genuinely vexatious were claimants to get legal advice and press forward anyway.
It is also our experience that claimants whose cases are weak or legally misconceived — in other words, they think they have a case but have not got legal advice — are much more likely to be able to let go of their cases and feel that they have got a resolution if they have had legal advice from someone that they trust and that they believe is clearly on their side. What is lacking is impartial, or neutral, advice.
In the existing system, claimants who do not have someone to run through the case with them and say that they do not have a case are more than likely to continue to muddle on as best they can, clogging up the system. They end up as unrepresented litigants in cases that lead to costly hearings, which is often due to their perfectly understandable difficulty in grasping complex legal points and procedures. This is the elephant in the tribunal room, and it is a fundamental problem with the procedures. It is, understandably, frustrating for tribunals and representatives, but the answer is not to deter claimants by increasing costs and orders for costs: the answer is to address the root cause of the problem.
Proper advice would lead to fewer weak cases being brought and more weak cases being withdrawn. That would then allow for speedier and more effective resolution of strong cases. It is much easier to resolve a case when both sides are represented.
Through our advice-line work, we have been able to contribute towards giving people the advice that they need in order to understand their case and often, therefore, to make an informed decision to withdraw their claim. In our experience, most meritorious claims that have been represented have also been settled. In fact, the vast majority of cases that we have been able to take on and represent have been settled before hearing. That, in itself, reduces the burden on the tribunal system.
At the minute, any changes that address the symptoms of this problem without tackling the root cause are likely to be cosmetic and ineffective and will make it more difficult for genuine cases to be resolved successfully. Giving employees the ability to bring forward and resolve genuine claims through arbitration, mediation, alternative dispute resolution, or, indeed, through the tribunal system will increase respect for employment rights across the board.
Northern Ireland has an opportunity to take the best of the current system, and the best of the changes that have been made in Britain and elsewhere, and fashion those into a system that is tailor made for resolving employment rights disputes that meets that needs of Northern Ireland, allows greater access to justice for individuals and improves the efficiency of the system.
Thank you for your presentation, which was detailed and interesting. I appreciate that you outlined, step by step, the process that claimants have to go through.
Your organisation is a member of the steering group, and the Department has told us time and again that it has an open mind on this matter and is willing to take on board some of the issues. Will you outline why you believe that there should be a separation of the issues? Have you brought that matter to the steering group, and if so, how do other members of the group feel about your proposals?
Mr D Murphy:
We are not actually on the steering group, but we have been working closely with DEL.
I was led to believe that you were on the steering group.
Mr D Murphy:
No, we are not.
We fed evidence into the steering group, and we met with DEL to discuss the proposals. We did that before and after the pre-consultation. In conjunction with DEL, we brought together a series of organisations to comment on the proposals. At that point, we fed in issues around the separation. The working relationship that we had with officials from DEL was very good, and there was an openness to take on board the issues that we were raising around generating a Northern Irish approach to the matters.
That is interesting to know.
I have a comment rather than a question. Based on what has just been said, there is a constructive relationship, and it is an ongoing relationship. When the Committee spoke to representatives from the Federation of Small Businesses, they said that they were generally content with the process and with the way that things were going, and you have said the same. I take your point that we have the chance to fashion what is best from Britain to create a unique situation for Northern Ireland, bearing in mind the great number of SMEs in the Province. Having listened to the very detailed way in which you have gone through your submission, and having listened to the presentation from the FSB, I am content that things are going in the right direction.
Thank you for the presentation. Daire talked about tribunals and meritorious cases. I take it from what he said that many cases have merit but that people are simply walk away from them.
Mr D Murphy:
From our experience, there is absolutely no doubt about that. We see it happening. People who do not have an alternative source of representation end up at our door. Most of the time, we are unable to provide the representation they need purely because of resource issues.
Do most meritorious cases not proceed?
A high proportion does not proceed. It is worth going back to Daire’s point that when unrepresented cases come to the Law Centre, it is Caroline and Daire who take them forward. A substantial number of cases come to us, and we can only take a proportion of them.
You said that a policy change is needed and that if people were provided with advice, that would resolve a lot of cases. However, is there not an argument that more cases could come before a tribunal as a result of that? The process that you have explained indicates the barriers that people have to go through and shows how claimants drop out from that process. If there were a policy, and advice were given, would people be more confident and willing to take more cases to a tribunal and win them?
Mr D Murphy:
The advice and representation that we envisage, would inform people of the merits of their cases. That might lead people to think that it is not worthwhile pursuing their case, or, at least, they would know whether it would be worthwhile to pursue it. If representation were to be provided, it would be provided to the meritorious cases.
At the moment, a lot of meritorious cases do not reach a decision. If advice were provided, all of those cases would go before a tribunal.
Mr D Murphy:
The question is whether such cases would proceed to a tribunal hearing. It is quite likely, if proper advice and representation were given, that a settlement might be reached.
Such cases might be settled earlier. The key problem, as Daire said, is that there is a perception that some claimants are vexatious: however, the behaviour of such claimants is often a product of the system and their difficulty in navigating through it. That point is recognised by many parties that go to tribunal and by the tribunal itself.
Two weeks ago, I attended a meeting of the tribunal user group at which the discussion centred on the issue of claimants having to struggle, particularly at case management discussions in which they have to comply with discovery requirements and set out their legal and factual issues. The discussion was dominated by respondents’ representatives, who highlighted the problem of dealing with unrepresented claimants. The president of the tribunal asked whether the Law Centre could be named in the tribunal’s correspondence with claimants so that they could be directed to us for help. We had to say no, because we do not have the resources. There is general recognition that lack of advice is clogging up the system.
However, for meritorious cases, advice and representation would result in a much quicker resolution being arrived at, because respondents’ representatives would also see that claimants have the weapons to take cases to tribunal.
Mr D Murphy:
Unfortunately, the attitude seems to be that fewer claims going to tribunal is a good thing, irrespective of whether some of the claims that have been lost have genuine merit. It is difficult for us to give examples of our own work, because settlements are often bound by confidentiality. It would be a spectacular breach of confidentiality to put such examples on the parliamentary record.
I recently dealt with a client who had suffered a heart attack and was dismissed after returning to work. He ended up suffering from depression. When he was eventually referred to us, he was desperate and felt completely overmatched and unable to take the case forward against his former employers. I believe that had we not assisted him, he would not have been able to take the case forward. The case was subsequently settled for £20,000. Unfortunately, that is an example of the sort of meritorious claims that are being lost because our resources only allow us to assist a small proportion of such claimants.
Is the Law Centre staffed by the three of you?
I cover the west, and Daire does the rest. [Laughter.]
Thank you for your presentation. What is the role of the Labour Relations Agency in these matters? We are discussing alternative dispute resolution, but I was under the impression that the Labour Relations Agency dealt with that. Daire said that individual who have a problem can go to a solicitor, then to the voluntary sector or to an advice centre — I was going to say constituency office — and then, eventually, give up. The Labour Relations Agency was not mentioned. Daire said that the LRA would sometimes contact the Law Centre. How does the LRA fit in?
Mr D Murphy:
Caroline is best placed to comment on the work of the Labour Relations Agency. To some extent, what we do is distinct from the work that the Labour Relations Agency does, which is to provide impartial advice to everyone. Meritorious claimants who have no other sources of assistance require legal advice that is tailored to their individual circumstances and the needs of their case in order to bring it forward.
The Labour Relations Agency’s advice line provides good advice, but it is limited to the stage up to which proceedings are issued. It handles a huge number of calls from employers and employees.
The other point is that in order to give directed advice and to be able to fully advise a potential claimant, it is important to have full knowledge and experience of tribunal procedures and how evidence must be produced to the tribunal. The Labour Relations Agency is not equipped to do that, because its advisers are trained in employment law but they are not practitioners. That is often significant when advising a potential claimant because, despite the potential merit of a case, it can be difficult to prove that to a tribunal. In that situation, a practitioner with experience of tribunal cases is better placed to advise the claimant.
Alternative dispute resolution is a separate section of the Labour Relations Agency — the conciliation arm — and it plays an effective role. If we consider that there is any prospect of pre-claim conciliation, we refer people to the Labour Relations Agency. However, because it is not publicised enough, that option is not widely known.
On behalf of the Committee, I thank you for attending and giving a presentation. You have raised some interesting points, and you have suggested some interesting solutions based on your knowledge and expertise, and those will help the Committee to form its response to the Department. My information was that you were on the steering committee; I will find out where that came from. I wish you well in the future. I have sent people to you, for which I apologise. [Laughter.]