La teoría de las elites, o realista de la democracia (Schumpeter)

In the SERA we asked CABx and Law Centre employment advisers whether they always, usually, sometimes or never represented clients at ET hearings. The findings are summarised in Table 56. Overall, two fifths of respondents (39 per cent) indicated they always or usually represented clients and just above a third (36 per cent) reported this was rarely or never the practice. Table 56: Frequency of Adviser Representation at ETs

CAB (%) Law Centre (%) Total (%)

Always 12.7 3.1 9.2 Usually 29.1 31.3 29.9 Sometimes 16.4 40.6 25.3 Rarely 20.0 18.8 19.5 Never 21.8 6.3 16.1 Total (%) 100.0 100.0 100.0 N=87

As described earlier, Law Centres are more likely than CABx to have staff who are professionally qualified lawyers. On average they achieve a higher rate of Tribunal applications to all employment problems heard than CABx. But as shown in Table 56 they are less likely than CABx to report always or usually representing clients at an ET (34 per cent and 42 per cent of respondent Law Centres and CABx respectively). A principal explanation is their greater reliance on LSC funding which does not cover representation of clients at the ET.

In fact some CAB respondents were adamant of the need to be independent of LSC funding for this reason:

“I think what is wrong with the legal aid system is the fact that they can

represent the client up to going on to the Tribunal and they don’t represent them … That is when the client, in my opinion, needs more support, more help than anything else.”

(CAB Adviser, North East)

We only give advice to people that qualify, well we only see people on a face to face basis that qualify for free legal help because a large part of our funding comes through the Legal Services Commission so we have to do enough cases to meet their requirements for their funding. They don’t fund representation in Tribunal so the only representation we do has to be funded from elsewhere. People that don’t qualify for free legal help, all we do with them is have an initial chat and refer them on generally to Solicitors that would operate on a no win - no fee basis.

(CAB Adviser, North.) Yet a number of CABx in our research did not have staff who were qualified to represent clients at Tribunal or were reliant on volunteer staff whose time for representation was restricted.

“…I do a couple of days a week although it’s 10.00 to 2.00 p.m. by the

time I get away. I don’t really want to spend a lot more time working for free, or even if I was paid. I have other activities I want to follow, so I feel a couple of days is fine. If you start doing representation, apart from the days at the hearing you have to then prepare for the hearing which can take a number of days if you can do it properly, what you’re going to ask them, research and it becomes more time.”

“We try not to represent cases. What we do…is to tailor my workload in

accordance with the demand and therefore, if you get somebody coming in with a straightforward unlawful deduction from pay case, who is perfectly capable of taking it themselves, then we would assist them to fill in the claim form to the Tribunal and let them take it from there.”

(CAB Adviser, East) Many interviewees, however, thought the demand on clients to make their own representation at Tribunal was among the factors that could deter them from proceeding with a Tribunal application.

Interviewees described the typically stressed state of clients who came to the Law Centre or CABx, ‘because they’ve been through a stressful situation

before they get to us’ (London Law Centre adviser). Some explained they

made every effort to settle cases before a Tribunal hearing, to protect the client from that additional stress, and that funding restrictions were a key factor influencing these decisions:

“…because we’re funded by the LSC, the other hat that I wear is, am I

doing the right thing with our funding? We’re not funded to represent. So I have to be very careful about my time and I’m churning out all these other cases, but I can’t spend a day in Tribunal, because I did last week … You know, we’re not paid for that and that does colour my view as to whether to refer something out or to do it myself.”

(Law Centre Adviser, London) The only way to attend an ET if LSC funded, as explained one adviser, was as a ‘Mackenzie friend’:

“Well it’s someone who is acting as an assistant at the Tribunal for the employee, not representing them, acting as an assistant, in other words, telling them what to ask.”

The employer often is represented at the Tribunal hearing by a lawyer, and one CAB adviser described how this could leave the applicant substantially disadvantaged:

“…we did have one case where – a total travesty of justice – not only did they find against our client on a matter of, well, there was no reason why they could have found against him, but then they awarded costs against him as well, which has never, ever happened before. The other side was represented by a barrister and this guy stood there and represented himself. There’s a gentleman’s agreement that you do not ask costs. It was a big company and the chair of the tribunal actually, he didn’t turn them down and then it was just a total travesty of justice, but there’s no way you could get it overturned, there’s no appeal. … Even our barrister looked at it and said, ‘the point of law is a bit obscure and it needs to be tried in a court rather than a tribunal’ and of course our client said ‘I’m already out of work, never going to get another job here, I just wanted to put it behind me and get on.”

(CAB Adviser, South East)

The client had been employed at a skip hire firm and had been accused, in effect, of whistle-blowing on irregular practices.

Law Centre and CABx advisers described the strictures of LSC funding and also the impact of the new contract from 2007 that obliged higher throughput of cases and could mean less time for any particular, complex case. As already noted, a far higher proportion of Law Centres depended on LSC contracts for core funding than CABx and the questionnaire survey Law Centre respondents were substantially more likely than counterparts in CABx to report that staff time for Tribunal representation had decreased in the past three years. As Table 57 summarises, 48 per cent of Law Centre respondents compared to 20 per cent of CABx indicated that staff time for Tribunal representation had decreased. Only 19 per cent suggested it had increased in comparison with 37 per cent of CABx.

Table 57: Change in staff time for ET representation in the past three years

CAB (%) Law Centre (%) Total (%) Greatly increased 10.9 3.2 7.8 Increased 26.1 16.1 22.1 Remained the same 43.5 32.3 39.0 Decreased 13.0 22.6 16.9 Greatly decreased 6.5 25.8 14.3 Total (%) 100.0 100.0 100.0

N=77

5.6 Employment Tribunal applications: Settlement before the