Open Justice is built into the DNA of Britain’s legal system.
I am setting up iLegallyAfford as a social enterprise to provide legal advice, HR support advice and Counselling. I am determined to make a difference in people’s lives by working with likeminded individuals as a team. At iLegallyAfford, we are very well aware of the daunting reality that people face when they realise they can’t afford to pay for a specialist lawyer/ solicitor or Barrister to give them legal advice and draft letters on their behalf. We have two legal systems in our country; one for people who can afford legal representation, and one for those who can’t. We all may live under the same laws, but this dichotomy casts a pall over any pretence of equal justice.
Disclosure of relevant documents must always be considered a mandatory requirement for justice to happen especially in Employment Tribunals. If this does not happen, affected individuals/ parties are trapped in a nightmare of injustice, denied a fair chance to present their case in court.
The only safeguard litigants in person have is the right to a legal representative defence and they don’t get that. Civil legal aid is no longer available for either advice or representation in employment law matters, including discrimination claims under the Equality Act 2010. Due to the failure of our justice system in providing civil legal aid to provide for either advice or representation, litigants in person lack a knowledge of the law and tribunal procedure by failing to choose the best cause of action defence and present their case in the Tribunal.
The Employment Tribunal defence system favours the employers and those who can afford legal representation in order to reap the benefits. Those who cannot afford decent representation suffer injustice the most, in a system that is supposed to provide hope. As long as we turn a blind eye to the injustice that litigants in person endure, as a society we shall never achieve democratic open justice. Litigants in person lack the income necessary to pay for legal interventions/ advice against unjust treatment and, as a result, they lack access to justice because Employment Tribunal law is complex and expensive to use.
Judgements obtained for a represented party by legally qualified Counsel or Solicitor – who then fail to disclose relevant documents and withhold documents, against a Litigant in Person – allow injustice to become the law, in an abuse of the process. This is using the legal system to discredit and humiliate a Litigant in Person who is not able to fight goliath. Money is more important than humanity, there is no alternative to justice in this case, is this the Britain that people want to live in?
Although an employment tribunal is less formal in its procedures than a court of law and is not bound by the rules of evidence, it must be satisfied that the complaint is proved, on the balance of probabilities, by the person.
However, in the absence of adequate material from which inferences can be properly made, a tribunal is not entitled to find a claim which is proven by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds.
Employment Tribunal Judgments are published on an online register and this means that a permanent record of the judgment will exist online and is accessible worldwide. The tribunal has no power to remove a judgment in its totality from the register. Judgments are easily accessible, not only directly via the online register but also through a simple browser search of a claimant’s name or the name of the respondent. As such, not only could future employers have access to such decisions but so could prospective employees. The publication of employment tribunal judgments in line with the principle of ‘open justice’ inevitably carries a heightened risk of reputational damage for employees/ former employees especially when an employer obtains the judgment fraudulently.
The online database has led to some employers being able to vet or even blacklist potential recruits by reference to whether they have brought claims or if they have a disability. I too have been affected, as have many other Litigants in Person.
The use of non-disclosure agreements in discrimination cases: Government response to the Committee’s Ninth Report of Session 2017–19
The MPs’ strongly worded report said that difficulties in pursuing claims through employment tribunals – where legal aid financial thresholds have rendered legal advice largely unaffordable – this has meant that staff often felt they had little choice but to reach a confidential settlement prohibiting them from speaking out.
“There is clearly potential for NDAs to be negotiated, drafted, and/or enforced in ways which may amount to perverting the course of justice,” the report said.
“After signing an NDA, many individuals find it difficult to work in the same sector again. Some suffer emotional and psychological damage as a result of their experiences, which can affect their ability to work and move on. There is also the financial penalty of losing a job and bringing a case against an employer
“Organisations have a duty of care to provide a safe place of work for their staff and that includes protection from unlawful discrimination.”