Employing more pro bono

A recent employment case highlights some of the legal and humane reasons why pro bono work is needed.

After her claim for breach of contract was dismissed at an employment tribunal, a woman appealed to the Employment Appeal Tribunal (EAT). The claimant had initially represented herself, but at appeal the case was initially handled under the Employment Law Advisers Appeal Scheme (ELAAS) – one of a number of pro bono initiatives set up in recent years.

One of the issues raised in the appeal was the situation where a chairman sits alone should cease because of the risk of bias or the appearance of bias. This essentially legal argument would have been difficult or impossible for the applicant to address on her own. At the final appeal, however, she was represented by a firm of solicitors and leading counsel, all working on a pro bono basis. The appeal was successful.

It is not just the legal complexity of such cases that can cause applicants problems. The very act of taking an employment case through the appeals procedure can be extremely stressful.

One man, who had had his application struck out by the tribunal, got help through the ELAAS. After submissions from his lawyers, the EAT ordered that the appeal go ahead. His relief and gratitude were obvious. He said: “This is the first light I have seen at the end of a long tunnel.”

The ELAAS scheme was established following suggestions made by Mr Justice Mummery, when he was president of the EAT, in a lecture delivered to the Employment Law Bar Association. The scheme has continued and grown with the encouragement of the current president, Mr Justice Morison.

The scheme is one of a number of pro bono initiatives set up in recent years, as lawyers have sought to bridge the gulf between the need for legal services and their availability. Other groups, such as the Bar Pro Bono Unit, the Free Representation Unit, and the Solicitors Pro Bono Group, have also been active in this area.

In employment law, this gulf is still too great, which is why the Employment Lawyers Association (ELA) has set up a working party to consider ways in which more pro bono services can be provided to those involved in employment law.

Many of these individuals, and their firms and chambers, already support pro bono work in numerous ways. But there is a need to do more. The case for pro bono work is a strong one and the ethical argument is clear.

Enlightened self-interest also points in the same direction. Those who undertake pro bono work develop their legal expertise and skills. Firms with established pro bono programmes report that their employees' perception of the firm is significantly enhanced by the knowledge that the firm undertakes pro bono work, as it is demonstrating its sense of social responsibility.

Increasingly, large corporate clients look at whether a firm is committed to pro bono work before instructing it. The Lawyer recently reported Terence Black, the deputy legal director of British Aerospace, as saying: “Our view would be that we would think very hard before instructing a firm that said it wasn't interested in pro bono work.”

More and more, firms which tender for work are asked whether they have a pro bono programme, and how much pro bono work they do. Over the coming year or two, it is likely that the number of applications to employment tribunals will increase significantly. Employees will enjoy new rights at work. Some of these derive from European measures in areas such as working time, parental leave, part-time work, fixed-term contracts, and representation through European works councils.

The Labour Government has increased the rights of employees by introducing the minimum wage, and it plans to raise the ceiling on unfair dismissal awards to £50,000 and to reduce the qualifying threshold for claims to one year's employment.

However, these enhanced rights will be of little or no value to employees if they cannot be enforced. Effective enforcement is more likely to be achieved with the benefit of professional legal advice. That is why pro bono work in this field is increasingly important.

For every litigant relieved to find a professional guide through the legal complexities of employment law there are many others – too many others – who cannot pay and consequently do not get the advice they deserve.

Paul Goulding is chairman of the Employment Lawyers Association.