I write this column in the aftermath of the political conference
season. If a year ago, I had asked you to guess the political party
of the person who said, 'Existing workers' legal rights
will continue to be guaranteed in law – and they will be
guaranteed as long as I am Prime Minister ... We're going to
see workers' rights not eroded, and not just protected, but
enhanced under this Government,' you may not have said
Conservative. But this is a new world, and the Tories now claim to
be the party of the workers.
Of course, the one thing we did not get from the speech was any
policy announcements and time will tell whether words will become
actions. After all, George W Bush claimed to be a compassionate
Theresa May says that tackling injustice is her passion in life.
If her conference speech is not to be empty rhetoric, then that
surely means not just changes to employment law but addressing
impediments to access to justice.
You know where I am going – employment tribunal fees are a
block to justice, and certainly when they are so high and are not
automatically recoverable when a claim succeeds and the remission
process remains obstructive. But it does not stop there either; the
Jackson reforms effectively keep the vast majority of employees and
a good number of employers locked out of the civil justice system
when it comes to the enforcement of employment rights heard in the
But we also have our own part to play. Ask yourself this: if you
were fired, could you (as probably one of the more affluent
employees in this wealthy country) afford to instruct a competent
lawyer to take the case through to a trial? If you were not an
employment lawyer, could you really do it without representation?
For many of us, the answer is no. How have we let justice become so
Hospital doctors complain about managers stopping them
performing a complex, innovative operation or telling them they
need to get a patient out of his hospital bed within 24 hours when
they know the patient would benefit from a longer stay. However,
hospital managers would say that while a doctor is focused on his
patient in the operating theatre, they have a wider responsibility
to all patients. They may add that in striving to offer top-quality
treatment to one patient, the doctor is depriving many others,
given that resources are limited.
Are we not like the hospital doctor? Lauding a system and our
part in it that generally delivers just results to the litigants
who appear before the employment tribunal, who are usually
accepting of the result because they know it has been considered
with diligence and impartiality by skilled judges. Yes, the system
is good at delivering just results for those who use it but, for it
to work, it needs a lot of lawyers concentrating on just a few
litigants, and it means that much of the rest of the populace is
priced out of legal assistance and justice.
Every once in a while, someone comes up with an initiative that
could offer a path to quicker, cheaper justice for the many,
inevitably at the price of purity. Take Brian Doyle's Judicial
Assessment procedure, under which an employment judge will, with
the consent of the parties, following a case management hearing,
opine on the merits of a case.
Many will question the value of such judicial thoughts being
voiced before disclosure and witness statements, expert
cross-examination and the like. And, of course, if outcomes are
achieved as a result, that will in some ways be rougher
But is not impure justice for all better than purer outcomes for
an elite of high net worth individuals, employers who can afford to
take a principled stance, union members and those with
Let's play our part and really give this initiative a chance
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Case law concerning the Agency Worker Regulations remains limited. We recently advised a recruitment business involved in a dispute with a "temp" and a hirer regarding who was liable for an alleged breach of AWR Regulation 5.
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