Ms Johnson: That is right. My hon. Friend has already talked about the measures and proceedings that are in place. A case can be brought before the tribunal in a preliminary hearing. The tribunal chair has the opportunity to ask for a deposit from a claimant. There are measures in place to deal with frivolous and vexatious cases. CABs, law centres and trade union representatives will be clear with people taking claims to the tribunal that it is stressful and that they can get themselves into hot water if they reach the tribunal with a frivolous claim. There are lots of steps along the way to stop that happening.
The hon. Lady powerfully explains her approach to these matters in her previous profession, but the Employment Tribunals Service's annual report and accounts give the success rate for claims that reach the tribunal: in sex, race or disability discrimination cases, it is 28, 15 and 29 per cent. respectively. That
14 Oct 2005 : Column 560
implies that, when giving advice, not all her fellow practitioners are as robust in suggesting to claimants that they have a weak case. She is right. Those giving professional advice should advise clients when their claim is weak, but the evidence seems to be that many are not giving robust advice and too many weak claims are proceeding to tribunal; otherwise, the success rates would be higher.
Ms Johnson: Any person who has represented someone in a tribunal will know that a case may not always go as well as one thought it would in the tribunal. Witnesses may not always come up to proof, although they have perhaps in a witness statement beforehand. All sorts of issues happen, but my experience and that of employment lawyers whom I have dealt with has been that there is every attempt to try to settle cases without the stress and anxiety of the client having to go through a tribunal case and sit through what can be often quite vigorous cross-examination by an employer's representative. Most employers will have a barrister or solicitor present to represent them at the tribunal. That is where I support the principle of legal representation in tribunals: we have to be aware that at the moment there are cases that go to tribunal where people do not have the opportunity of legal representation.
We have talked a lot about trade unions and the important role they play. I am passionate about ensuring that as many people as possible understand why it is important to be a member of a trade union, to give them that protection if they get into difficulty in their employment.
Mr. Kevan Jones: From my experience in tribunals, many companies employ barristers for cases that do not need it. Does my hon. Friend agree that there is a danger in the argument that she has just advanced, in that one may have to ratchet a case up when, for example, a company brings a lawyer and then a barrister in? That would then have to be paid for by the taxpayer. Nine times out of 10 in the cases I have experienced, no barrister or solicitor is needed.
Ms Johnson: Some of the most effective representatives whom I have come across in employment tribunals are not lawyers but people who have a lot of experience working in citizens advice bureaux or law centres. Often they will have a more common-sense approach, too.
Again, I agree with the principle of representation in employment tribunals for some cases. I do not believe that we need the extent and range of representation that perhaps this Bill is putting forward. Agreeing in principle but looking at the practicalities of my own experience, I would say a better way forward was to charge the Legal Services Commission with looking again at how best legal advice and representation can be provided where it is needed in tribunals. There is a wider issue about community law centres and the valuable role they can play in educating local communities about the rights they have, taking forward claims of discrimination and other employment matters when necessary, and using all the alternative dispute resolution mechanisms. I found ACAS vital in the claims I took forward.
14 Oct 2005 : Column 561
Mark Tami: I do not know whether my hon. Friend has had a chance to see the community legal service website, but it gives a lot of excellent information that is quite readable and helps people, particularly at the initial stages, when they may be worried about whether they have a case or not.
Ms Johnson: That is right. I am pleased that the Government have introduced a range of measures. We have the commitment to the community legal service. We have funding of some community law centres. We also have investment in citizens advice bureaux. All those measures are positive and we should support them, but there is a need in certain cases for legal representation.
I want to say something about the problems applicants have in employment tribunals if they have to represent themselves. When I started practising employment law, the procedures in the employment tribunalit was then called the industrial tribunalwere far simpler. It was almost as if one could turn up on the day and present one's case. Now a range of procedures have to be adopted. We have to disclose evidence before a tribunal hearing, provide witness statements and further and better particulars when requested by the other side. Applicants find those things difficult to do. It is getting technical and legalistic. That is why it is vital to have input from a law centre or a trade union rep. They can deal with those things.
Mark Tami: I know from being involved in tribunals that, when the person turns up and sees that there is a barrister on the other side, that can be frightening. They link it to a court situation and feel vulnerable.
Ms Johnson: My hon. Friend is correct. Tribunal chairs are often very good about assisting applicants to put their case, but I have encountered chairs who are less helpful and supportive of applicants who are acting on their own, and if the other side has a barrister it can cause real problems in terms of justice being seen to be done.
Mr. Heald: I agree with the hon. Lady's basic argument that building on what we have is preferable to a new quango. She talks about barristers, companies being represented at tribunals and the over-formality of the process. Does she accept that, with only about 5 per cent. of discrimination cases succeeding in the tribunal, she is talking about a massive burden on British business? Anything that encourages a surge in claims will make that huge burden even worse.
Ms Johnson: I have tried to stress the range of alternatives that are now available to deal with employment problems and claims; we are not telling people simply to go to the tribunal. The alternatives include ACAS, which is an extremely important body: it plays a strong role in bringing claimants and employers together and securing some good settlements, without businesses having to spend time going to the tribunal.
Sensible employers recognise when things have not gone as they should in their business. If acts of discrimination or problems with other employees for whom they are responsible have occurred, good businesses will respond to a claim by saying, "Let's settle
14 Oct 2005 : Column 562
this. We don't want the bad publicity associated with going to the tribunal." However, there are also bad employers who will not acknowledge when they have got things wrong and discriminated against people. In my example of the cleaner, her employer refused for a long time to accept that it had done anything wrong.
Mark Tami: Does my hon. Friend agree that if an employer is the subject of a raft of tribunal cases, that is a sign that something is fundamentally wrong within the company, whether in its management or its grievance procedures? We must also deal with companies not having appropriate procedures in place, which can result in people feeling that they have to bypass what the rest of us would regard as the normal process and go straight to tribunal.
Ms Johnson: That is correct. Good employers have robust grievance and disciplinary procedures that enable cases to be dealt with within the company. That is the ideal, but things do not always go according to plan.
Mr. Flello: Does my hon. Friend accept that poor employers are bad for good businesses? Good businesses suffer because they are at a competitive disadvantage when a bad employer undercuts them or uses sharp practice.
Another case that I dealt with involved a women who had been diagnosed with breast cancer and who was going through a TUPE employment transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1981. Both her existing employer and the new one denied that she was their responsibility. Both were large, well known companies and I was taken aback by their response. We had reached the door of the tribunal when I heard through the wall a barrister shouting to both employers that one of them had to take responsibility, and that if the claim reached the tribunal both would get massive bad publicity. We should focus on the useful role that lawyers can play, but stress to employersgood onesthat it is much better for them to deal with claims sensibly and reasonably, lest they get themselves into difficulty in a tribunal.
There are other bodies of which we should be aware. The Free Representation Unit provides advice and representation to people who are not able to access legal representation through the legal aid scheme. The unit comprises young barristers and solicitors who are willing to give their free time to represent people, and they do a sterling job. In addition, barristers give their time for free through the Bar Pro Bono Unit. I commend both organisations, but I do not think that we as a society should rely on people giving up their time for free.