Legal Corner: Impact of Covid-19 on labour market — funding legal claims

27th Nov 2020
Legal Corner: Impact of Covid-19 on labour market — funding  legal claims

With the Covid-19 pandemic continuing, the impact on the labour market has already been significant, with perhaps more turmoil to come in the coming months. Every week there are new announcements of businesses closing or segments of the workforce being made redundant.

This has inevitably led to an increase in the number of people seeking legal advice or assistance, and the number of employment claims being issued. But it also leads to a surge in queries about how such advice and representation might be funded by someone wishing to pursue a claim.

Legal aid is not available to claims relating to employment matters, regardless of your means. So, what options are available, aside from the obvious one of funding it yourself, which for many, particularly those who have lost their jobs, is impossible?

There are three main alternative options; first, some trade unions fund some claims which are brought by their members. If you are a trade union member, it is worth raising your case (or even before that stage, your concerns) with them, to see if they will agree to fund legal representation for you. Many unions will assess each case and see if it meets their threshold on prospects of success (which may well be higher than 50 per cent).

Some also take into account whether the case raises any broader principles which might impact on the wider membership. The second option is to investigate whether you may have legal expenses insurance cover as part of your home insurance, which might cover employment matters.

Many people have such cover built into their insurance policies but are wholly unaware of its existence. If such cover is in place, the insurers will also assess the prospective merits of the claim and identify which parts of the process might be funded and to what extent.

The third option is to find a solicitor who is willing to enter into a conditional fee arrangement (often advertised as a ‘No Win, No Fee’ contract) where the solicitor will accept a portion of any award made, or settlement reached, as payment for the work they undertake. However, beware, as very few solicitors offer such an option and many cases may not be suitable for that sort of funding model.

If an individual wishes to pursue a claim but don’t have access to legal representation, the good news is that they can bring their claim themselves and even represent themselves at any future hearing.

A significant proportion of Claimants (the term for someone who brings a claim) pursue their claims without any legal support at all.

The first step that a potential Claimant needs to take is to make contact with ACAS and undergo a process called Early Conciliation. Ordinarily, this needs to be done within three months of the act complained about, such as dismissal.

The purpose of Early Conciliation is to see if there is any way that a negotiated settlement can be reached between you and your employer (or former employer) and avoid the need to bring legal proceedings. If that process is not successful, an Early Conciliation Certificate will be issued (this is an essential prerequisite of bringing a claim in the Employment Tribunal).

Issuing a claim in the Employment Tribunal is a simple process of filling in an online form setting out some basic details about your employment, as well as a summary of the claims that you bring. The time limits for doing so are dependent on how long the Early Conciliation process took, but a prospective Claimant usually has a month after their Early Conciliation Certificate to issue a claim (however, please do check this carefully).

There is currently no cost associated with issuing a claim in the tribunal; fees were introduced in 2013, but the fee regime in place was ruled to be unlawful by the Supreme Court in 2017. Although there was talk about a different fee regime being introduced, this has not happened as yet.

It is important to bear in mind, however, that whilst some people may feel that they have no option but to pursue a claim relating to an employment issue, the process itself is long and often emotionally draining. The pandemic has severely impacted on the waiting times for hearings, and many people have to wait well over a year for their case to be heard. It is therefore advisable to try and resolve any work-related issues through internal process, or via Early Conciliation, if at all possible.

DISCLAIMER: the purpose of this article is to provide general guidance, but it should not be taken as legal advice. You are advised to undertake appropriate research or seek professional advice relating to your specific circumstances.

Safia Tharoo
Barrister, 40 Bedford Row, London

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