Working Theory

by Michael Reed

Me?

I do employment law for the Free Representation Unit.

Email?

michael at workingtheory.co.uk

Elsewhere

Symbiotic Pro Bono

18 November 2013

I wrote a post on my other blog Employment Tribunal Claims asking people to consider sending employment cases to FRU last week. If you’re involved with an advice agency who might be able to send me a case, please read it!

I mention it here, to discuss in more detail why we’re asking for more cases and what that implies about employment cases and pro bono more generally.

FRU has a simple, but extremely effective, business model. Our referral agencies (Citizens Advice Bureau, Law Centres, Solicitors and other advice agencies) send us cases. At the same time we train volunteers, mostly law students. Then we make the cases available to the volunteers and supervise their representation.

This works well, precisely because it is simple and because it aligns FRU’s interests with both the referral agencies – who need people to represent their clients and the volunteers – who are both idealistic and pragmatically eager to gain experience to propel themselves into the legal profession.

The issue we face at the moment is that that the number of employment referrals have dropped off. This leaves me with many eager employment volunteers, but not enough cases for them to do.

I think there are two explanations for the reduction in referrals.

First, the impact of fees has cut the number of cases coming into the employment tribunal. The MoJ has published some working statistics, which show the number of incoming single cases holding at about 4000-5000 a month before fees. They spiked to 7,000 in July, as people filed early to avoid the fee. Then dropped to 3,000 in August and again to 1,000 in September.1 These numbers are management information, not formally published government statistics. They should be taken with a considerable pinch of salt. In particular, it seems that cases are not included in these statistics until the issue fee is resolved. So any delay in paying the fee or resolving a remission application will be depressing the numbers. I think this is probably a significant factor in the September numbers. I can’t see any other reason September would be so much lower than August.

So, in part, we’re probably looking at a short-term choke, in which a lot of cases were brought early in July. Then the fees process has held up the cases lodged in August / September / October, leaving a gap.

Nonetheless, the number of cases is coming to the tribunal is likely to drop. In one sense this need not harm FRU. Historically, we’ve done up to about 500 employment cases a year. This may be excellent for a small legal charity, but it’s a tiny proportion of the 60k odd single cases that generally come into the employment tribunal system every year. But fewer cases overall means we need to get a higher proportion of them to keep our numbers steady.

Second, FRU is an extremely mutualistic organisation. We rely on referral agencies sending us case and volunteers arriving to do them. And all too many of our referral agencies have either gone out of business or had their resources badly cut. The advice sector, in general, is in difficulty. So, whatever the demand is, people are finding it harder to come through to us, because the pipeline is damaged.

None of this is an insurmountable problem. FRU has been around since 1972. I expect it to be going strong in 2072 and 2172. As long as people need help, I trust we’ll find a way of helping them.2

But I think it illustrates nicely one of the problems with the reduction in funding to the advice sector and legal aid. That money didn’t just work directly, it worked indirectly, by allowing other work, such as FRU’s, to build onto it.3

For example, it’s much easier for a rich solicitors firm to send a trainee on a secondment to a Law Centre than it is to provide a similar amount of free assistance on its own. The Centre has an existing client base and expertise that the firm can tap into. Without it, the firm has to create its own infrastructure. Either it won’t – or resources have to be spent building something that was already there.

Similarly, many solicitors and barristers have done pro bono work through CABs, law centres and organisations like FRU, LawWorks and the Bar Pro Bono Unit. It’s much easier to volunteer in this way than to go out looking for clients directly.

People talk about pro bono work replacing legal aid, or reducing the impact of the cuts. But I think that ignores both the raw numbers involved (legal aid was helping an awful lot of people, far more than pro bono organisations do) and the impact of cuts on pro bono itself.

So as not to end on a depressing note, I’d note one positive thing. When I put out a call for more cases and asked the legal community on twitter to spread the word, we reached 58,420 people. It was a heartwarming expression of support from a lot of people. Of course, most of people who read the tweets won’t send me a case. But if 0.1% do, FRU will be very busy for a few months.

  1. Employment Tribunal Receipt Statistics (Management Information): July to September 2013.

  2. Regrettably, the mission of relieving poverty by providing legal representation probably won’t become obsolete any time soon.

  3. I should say, for the avoidance of confusion, that I think the direct impact has been much more harmful than the indirect. It just happens that I’m working on the indirect side, so that’s what I’m talking about.

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