Camilla Palmer QC (Hon)
There are many problems with the current state of employment law. It is too complex, exacerbated by a huge increase in casualization of labour The lack of legal aid, high lawyers’ fees and insufficient free advice services means that most employees cannot access legal advice at all, let alone from start to finish. High tribunal fees have excluded many employees from enforcing their rights through tribunal claims. Some employers take advantage of the fee regime and refuse to settle until the claim has been lodged. As lawyers, we need to think of innovative ways of addressing these issues and finding solutions particularly for those who cannot afford expensive lawyers or want to avoid litigation – the majority. Some part of the answer may lie in guided digital pathways linked to unbundling of services – certainly that is the approach that we are seeking to follow at YESS (subject to adequate funding.
Most employees do not want to litigate as they know that it is expensive, uncertain, stressful, career damaging and time consuming. However, many feel (rightly or wrongly) badly treated and want resolution, often by way of money and an apology though the latter is rarely made. Many employees want to end the employment relationship on good terms; this sometimes leads to them being offered a consultancy with the same employer and it is, after all, the employer who will provide a reference for their next job.
All this means that ‘unbundling’ – where legal help is provided for part of a case, rather than from beginning to end – is a no-brainer. Employees (and many small employers) cannot afford the ‘full monty’ service. Lawyers must be willing to provide the help that the client wants, and can afford, in the most cost effective way. Cost effectiveness for clients must trump any inclination to meeting billable hours and fee income targets.
YESS (Your Employment Settlement Service) which is named after the brilliant book about negotiating – ‘Getting to Yes’ (by Roger Fisher and William Ury) – has as its main charitable objective ‘promotion of the resolution of conflict and disputes between employers and employees, without recourse to litigation’. We have been providing an ‘unbundled’ service since March 2014. It is limited to advising the client (employee or employer) about their legal position with a view to reaching resolution without litigation. We never advise on the litigation itself (except the time limit for bringing a claim) but refer the client to a litigating lawyer should resolution not be reached and the client wants to go down that route. We make it very clear at the outset that we never litigate and if it appears that the employee feels justice will only be achieved through litigation, we suggest they go elsewhere – but this is rare. In most cases litigation is and should be the last resort, not the first. Our strapline is ‘Life’s too short to litigate’.
The YESS model of unbundling works in that we achieve a settlement for 90 per cent of our clients. It works particularly well where we can coach the employee to negotiate themselves with their employer, empowering them (as some say) and saving costs – but as a charity we are non profit making.
Lord Justice Briggs, in his final report on the Civil Courts Structure Review (para 6.26, see also 6.36-6.38) on on-line courts says:
‘There is also great force in the notion that everything possible should be done to construct an economic model which encourages qualified lawyers to offer, and litigants to seek, early bespoke advice on the merits of their cases (claims or defences) before pursuing or defending litigation’ and ‘If that advice could be provided separately from the current form of full retainer, it might be available at affordable cost rather than, as at present, disproportionate cost’.
Briggs points out that without early bespoke advice there is a risk that litigants with poor cases would not be suitably deterred, that it opens the door to unqualified advisors and leaves individual or small business litigants seriously exposed to under settling their claim when opposed by experienced opponents.
My question here is whether the YESS model could be extended to other areas of law. Support for this comes from Briggs who recommends the provision of early bespoke advice on the merits of individual cases by qualified lawyers.
Surely in the majority of cases the first question a lawyer should ask is ‘Can the dispute be resolved without litigation’? Many lawyers, and some clients, think it is ‘weak’ to be the first to raise settlement. We need to get over this presumption or early settlement will never be achieved – and that is not in most clients’ interests. The key is that the parties have access to proper advice about the merits of their claim before entering into negotiations. The lack of individual tailored advice under the ACAS Early Conciliation Scheme is its weakness because there is no in-built advice in the process. How can an individual properly settle when they do not understand whether they have a case, what it is and its value?
As Stephen Gold (author of Breaking Law) points out ‘Unbundling is an invaluable service that the public needs more desperately than ever’ and he says ‘There would be very serious consequences for both the courts and litigants in person if solicitors felt unable to perform unbundling services for fear of being sued’. He adds: ‘ Nevertheless, it is vital that where a solicitor is consulted for the service, the limitations of what they are doing is carefully set out in writing.’
But, we need to go further and think about how we can provide the information and advice for clients in the most cost effective way. This can be partly achieved through the development of interactive guided pathways which enable the client to answer key standard questions on-line to save the lawyer’s time in gathering this information. If guidance is also given about the range of legal claims (and an indication of their likely value), possible options and how to negotiate a settlement, this makes the lawyer’s job even quicker – and so cheaper for the client. This has already been done by a number of websites particularly in relation to family law (Siaro, a family interactive website), Rewired 2 (Netherlands system), MyLawBC (British Columbia).
However, it would be wrong to suggest that an online service can replace bespoke advice. As Briggs states:
True it is that very simple, standardised guidance can be provided online about the essential legal elements of many case-types. But this will not (at least at the current stage of IT development) be a substitute for bespoke advice, sensitive to the infinitely variable facts of individual cases. Nor can the provision of it simply be left to the pro bono advice agencies, unless funded again at a level which may approximate with the re-provision of Legal aid’.
The digital age will not go away. The Ministry of Justice report ‘Transforming Our Justice System’ says that In the next 18 months, online dispute resolution is to be tested in Social Security and Child Support hearings. Tribunal judges will provide dispute resolution through ‘continuous online hearings’, which will enable judges to gather evidence and make informed decisions, though it is unclear how this will be ODR rather than traditional tribunal decision making by a judge.
To conclude, first, it must be recognised that digital provision is valuable but not enough on its own, as recognised by Briggs. It is essential that there is a lawyer available for a 1-1 discussion to ensure that there are no crucial gaps in the information provided and that the client has understood the information and possible claims, their options and how to achieve them. Human assistance will also be necessary for those without access to the internet or unable to use it.
Second the development of digital justice must be done in a way which makes the guided pathway as accessible and easy to use as possible – to all users including those not very digitally literate. This means it will have to be a more time consuming and complex process as it will need to be thoroughly tested before it is rolled out. Too many IT projects fail for want of testing and training.
There is a long way to go. Development of these interactive sites will take time and there will be failures along the way but with the increasing complexity of the law and diminishing advice for those on low incomes, there is no alternative. If employees have no way of understanding the law or enforcing it, they are left with rights without remedies – and the rights might as well not exist.
Camilla Palmer is CEO of Your Employment Settlement Service (YESS)