A host of new EU and UK legislation is keeping the Employment Law Bar Association busy, says Robin Allen QC. Robin Allen QC is chair of the Employment Law Bar Association and a barrister at Cloisters. The Employment Law Bar Association (ELBA) plays a central role in all aspects of employment law: advising, educating and representing its members; consulting with solicitor colleagues, employment appeal tribunal judges, industrial tribunal chairmen and government departments; and providing a free representation scheme at the employment appeal tribunal.
That role is now even more important as employment lawyers get to grips with an unprecedented combination of legislation from Europe and Westminster following the election of the Labour Government.
Each year the ELBA holds a series of seminars on topical issues, and at this year's Bar Conference the association organised an important workshop. This aimed to update lawyers on European discrimination law and to explain the consequences of the delayed implementation of the Working Time Directive and the changes made by the Amsterdam Treaty.
The Amsterdam Treaty involves the repeal of the Tory “opt-out” from the social agreement measures in the Maastricht Treaty, and the new “opt-in” to Euro social protection will result in at least four major measures coming directly to the UK from Brussels.
Two directives have already been operating across the Channel and will soon come into effect in the UK – the Works Council Directive, which requires multinationals employing 1,000 or more in Europe to inform and consult their staff, and the Parental Leave Directive establishing the right to parental leave for a period of at least three months by reason of birth or adoption of a child at any time up to the eighth birthday of that child.
Two other proposals for legislation are at an advanced stage and can be expected in the near future. Agreement has been reached between the “social partners” – the European confederations of unions and business – on a directive for added protection for part-time workers.
The council has already reached a “common position” on a directive to ease the burden of proof on those complaining of sex discrimination.
In anticipation of domestic legislative changes the ELBA has set up its own working party to provide briefings to MPs and the Government on its employment law programme.
The association has already been widely consulted on the Employment Rights (Disputes Resolution) Bill, and it is carefully reviewing the implications of incorporating the European Convention of Human Rights into domestic law and the proposed minimum wage legislation.
The Employment Rights (Disputes Resolution) Bill seeks to encourage alternative methods of resolving industrial disputes to take the burden off industrial tribunals, which are dealing with record numbers of claims.
The ELBA is also keen to develop a role in alternative dispute resolution, drawing on the unrivalled experience of its members in resolving employment law disputes.
The ELBA anticipated the Government's discussions on new ways to fund litigation and has set up a working party to examine the benefits of conditional fee arrangements for industrial tribunal claims.
The Government promised a green paper setting out in greater detail its proposals for legislation soon after election, but this has been put back until the new year.
Even so, it is already clear that there will be significant changes in the areas of collective and individual employment law. Legislation for union recognition of collective bargaining and union checkoffs already look likely as well.
Private member's legislation in relation to whistleblowing at work is also expected to get government support.
As well as advising on these topics, the ELBA, together with the Free Representation Unit, has developed a programme of continuing education for barristers in the first years of practice.
Legal aid has never been available for industrial tribunals, and although the previous Lord Chancellor, Lord Mackay, floated the idea of extending legal aid to industrial tribunals, that idea quickly died a death. There are no signs that this Government will be more generous.
Legal aid is available only in appeals to the employment appeal tribunal (EAT). Even so, the ELBA has set up a free legal advice and representation service for unrepresented appellants at the vital preliminary hearings before the EAT, where the course of the appeal is often determined.
This scheme has been running since 1995, now in combination with the employment sub-committee of the Law Society. It has been enormously successful in attracting the support of the employment law Bar (including many QCs as well as juniors) and leading employment law solicitors.
In the year from June 1996 more than 140 otherwise unrepresented appellants received advice. No appellant, whether employer or employee, need appear at the first stage of his or her appeal without legal advice, whatever their means.
Many of the ELBA's members have also volunteered to offer a wider range of advice through the Bar Pro Bono Unit or the Free Representation Unit's chambers scheme.
At a time when some sections of the Bar are getting a bad press, no one could call the employment law Bar “fat cats”.