Written evidence from ELAN – Employment Legal Advice Network

October 2020 - Response to Inquiry on the Future of Legal Aid

Victoria Speed, COVID 19 Response Coordinator, ELAN.

The Committee has invited contributions on the following:

 

About ELAN

ELAN is a network of over 40 organisations dedicated to ensuring that people in London are able to obtain advice about and enforce their employment rights and entitlements. This could be through the provision of advice and/or campaigning for change. The primary focus is on low-paid workers and those in precarious work. Some members employ employment lawyers, others rely on employment advisers. The aims of ELAN are to:

 

How LASPO has impacted access to justice and for views on the post-implementation review and the criminal legal aid review

ELAN members explain that, although there was some limited funding of employment legal advice prior to LASPO, it was insufficient in the light of the complexity of the problems and the nature of employment law breaches with the most vulnerable of workers. Since LASPO, there is rarely any funding available. Even in the discrete areas where there might be funding available (discrimination), considerable time is required to identify the suitability of the case for funding. This time is not chargeable under LASPO and yet it is such an important step in terms of accessing justice.

Members explain that it is often very difficult to ascertain the facts with employment cases. There are a lot of reasons for this including:

For these reasons and more, it can often take considerable time to establish whether each client has any recourse in law or right to legal aid.

 

The Role of the Legal Aid Agency

ELAN members explain that there is considerable delay from carrying out work until payment by the LAA. Members therefore seek alternative funding solutions for employment advisers to begin their work e.g. from advice sector funders. Many roles in the employment advice sector are therefore short term e.g. for six months whilst the appointee performs work that will ultimately be funded by the LAA. This raises considerable sustainability issues in the employment advice sector as further outlined below.

 

Recruitment and retention problems among legal aid professionals

During one week in September, 6 members of ELAN were recruiting for an employment expert in the light of the significant increase in demand for employment advice. All of these jobs were for fixed term roles (6 months to 12 months max). All were funded by non LAA funding. Of those 6 jobs:

This is just a snapshot of the recruitment issues in this sector and demonstrates the problems. There are good reasons for these difficulties. It is difficult to imagine anyone moving from a secure role to a fixed term contract with little job security, particularly during the pandemic. In addition, in the employment advice area, the legal aid sector is competing with the private sector. All roles advertised in this one week offered a salary of c£36000 pro rata. In the private sector, employment lawyers command higher salaries, even outside of London. Even the Trade Unions offer better terms and conditions, including job security, for those committed to working with the most vulnerable of workers. Members report difficulties with attracting expert staff in the area of employment law and, in the light of the lack of funding in the employment advice sector over many years, there is little expertise in employment law at the junior level. It is noted that the new training regime for solicitors, the SQE does not offer the option of studying employment law, adding to the issues with recruitment that the sector is likely to face in the future.

In so far as retention is concerned, there are several issues. In addition to those outlined above, members have described the overwhelming nature of trying to cope with the demands of advising on employment matters without job security. Members explain that other colleagues more easily identify and complete chargeable work in the light of the different nature of their work (e.g. housing) and this causes employment specialists to feel more worried about their job security. This added pressure and stress seems wholly unnecessary, since it is created from a funding system that fails to recognise the unique challenges of employment related cases. Where there is a feasible private sector alternative to pursuing a career in the employment legal advice sector, there are serious retention risks.

Employment law is increasingly complex, never more so than during the COVID 19 crisis. The most vulnerable workers, those on zero hours contracts, in domestic service, cleaning staff, construction workers, NHS agency workers, often migrant workers are often unable to articulate the breaches of labour laws in the context of their own situation. Where they do identify that they have been poorly treated by their employer, and approach an organisation seeking advice on their situation, they deserve to receive advice from an expert. The 2020 reality is that this is simply not assured.

 

The impact of the court reform programme and the increasing use of technology on legal aid services and clients

Since lockdown in early 2020, members tried to move their services online as lockdown prevented drop-in and other in-person services. As early as mid-April, members noted the difficulties of advising vulnerable clients by telephone or Zoom. Many clients of their voluntary sector organisations do not have access to a computer or the internet. Many do not speak English. Even when they have access to a mobile phone, there are few resources available for them to exchange documents including those fundamental to a review of their case, such as the employment contract. Seeking solutions for these issues on a national scale should be an immediate priority.

These same issues represent barriers to vulnerable clients in relation to remote hearings. Members fear a negative impact on access to justice without proper funding and support for improving community access to the resources needed.

The move to work from home highlighted additional problems. Members report a shortage of IT equipment that would enable a workforce, including a volunteer workforce, to work effectively and efficiently from home including access to scanners, printers and good Wi-Fi. There is insufficient operational expenditure funding available to solve these issues as the pace that the pandemic is forcing the sector to act.

 

Covid 19 – Impact on Legal Aid Services and Clients

  1. Increase in employment law related queries

In the period between 16 March and 6 May, Citizens Advice website noted that pages on employment advice, for example about sick pay or furloughing, were viewed 2.3 million times - a 77% increase on last year. https://www.bbc.co.uk/news/uk-england-52648365

For more CA data see: https://www.citizensadvice.org.uk/Global/CitizensAdvice/Covd-19%20Data%20trends/Citizens%20Advice%20data%20report%20-%203%20months%20of%20a%20pandemic.pdf

An example of this increase in practical terms for one member of ELAN - By 9th April East End CAB reported they were receiving 250 calls a day, up from the usual 150, many of which related to employment matters.

Another - Advice UK reported that in Jan and Feb 2020, their network managed 1100 employment advice matters. In March it was 1740. In just two days in April it was 289, with an estimate of almost 4000 in that month.

  1. Change in nature of queries.

At the beginning of crisis, the network noted an increase in queries around dismissals, the application of coronavirus job retention scheme and unpaid wages. In particular, agency workers and zero hours contract workers sought advice. These workers were particularly vulnerable at the onset of the pandemic. Network members reported that these workers were being dismissed with immediate effect rather than being placed on furlough or being made redundant following a proper procedure. It was notable that many employers were acting in breach of the guidance. Several of the network reported cases where employers were telling people to work whilst on furlough and even when government advice was to stay home.

In September 2020 the CAB Dashboard shows trending content as including: Check how much redundancy pay you can get. The ELAN network reports a huge increase in queries around redundancy.

The reality of the employment situation in the UK for vulnerable workers is demonstrated by the fact that several of the network report cases where clients have no written terms or conditions, not even a S1 statement. Also, many report cases where the employer labels the working arrangement as self-employed to suit them at significant cost to the worker.

Many clients of the legal advice sector need support in other ways. For example, network members identified issues with the guidance, for example the calculation of furlough payments penalising women on maternity leave. On top of advising through their existing helplines and clinics, members collaborated to identify examples such as this and ensure they were raised with government.

E.g. https://maternityaction.org.uk/wp-content/uploads/Briefing-H-S-during-Covid-19-FINAL-PDF.pdf

  1. Difficulties with reaching clients

Most of the network provided walk in advice clinics and overnight were required to think of different ways of delivering these services. Many noted a shift in client base. Although numbers were up, the make-up of the numbers was different. They are concerned about how they ensure the most vulnerable, who would only rely on drop-in services, are seeking help.

  1. Difficulties with representing vulnerable clients

There are many barriers to seeking advice for the most vulnerable including inaccessibility of remote or online services as described above. In addition, the network reported an increase in clients experiencing mental health difficulties.

  1. Impact on advisers

The impact on advisers suddenly working from home without their usual work support mechanisms when managing clients with complex needs must not be underestimated. ELAN provided a training session on effectively advising clients with mental health difficulties but protecting the wellbeing of the legal advice workforce must be given due attention.

  1. Impact of COVID 19 on capacity to deliver employment advice

The network relied heavily on volunteers to deliver their pre pandemic services.  Whilst employees of the advice sector set up systems to deliver their services remotely with impressive speed, many volunteers remain stood down as agencies lack clarity about data protection, safeguarding and other issues connected with remote delivery of advice services. They lack the guidance to tell them what to do.

COVID 19 necessitated a move to online advice services without the IT infrastructure to do so.

 

What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere

 

In the employment sector, the issues set out above highlight some challenges for legal aid. There are insufficient funds available for employment issues. The reality is that where workers’ rights are ignored and they end up out of work, there is considerable risk that those workers will ultimately need assistance with welfare benefits or housing advice ultimately requiring legal aid funds.

Where there are funds available under LASPO, there are difficulties with funding staff for the initial phase of work, difficulties with identifying clients for whom the funding might apply and challenges with recruiting and retaining staff with the necessary skills and experience.

ELAN believes that there should be a Single Enforcement Body for Employment Rights. ELAN submitted a response to the 'Good Work Plan: establishing a new Single Enforcement Body for employment rights' consultation.

https://www.trustforlondon.org.uk/publications/trust-londons-response-good-work-plan-consultation/

 

Conclusion

For many people the reality is that the law is meaningless as they have no effective way of enforcing their rights.  The grant making charities didn’t have the capacity or means to pick up the loss of funding through cuts to legal aid scope and cuts from the Equality and Human Rights Commission.  Along side this there has been a diminishing role of the unions to pick up cases.  Neither legal aid or EHRC funding for employment advice and casework were perfect but there was some provision. Now you either need to have the financial means or the right insurance to pay for a lawyer to fight for your case.  This leads to a 2 tier system and lack of opportunity for all.  This is a very sad indictment on the society we now live in and where bad practice and exploitation can easily go unchecked.  There needs to be a radical rethink of how people can enforce the laws regardless of their means.