Vulnerable workers and
employment disputes:
the role of advice agencies
Dr Morag McDermont
Prof Nicole Busby
Dr Emily Rose
Mr Adam Sales
Outline of presentation
• Background to research
– Legal consciousness and researching “vulnerable workers”
– Employment tribunals under attack
– The changing legislative environment
• The pilot study: ‘Barriers to Justice’
• Advice Agencies: New Sites of Legal Consciousness
‘Citizens Advice Bureaux and Employment Disputes’
• Questions
Legal consciousness and researching
‘vulnerable workers’
• Inadequacies of quantitative surveys
• Vulnerable worker
– “someone working in an environment where the risk of being denied employment
rights is high and who does not have the capacity or means to protect
themselves from that abuse.” (‘Success at Work: Protecting Vulnerable Workers,
Supporting Good Employers: A Policy Statement for this Parliament’ (DTI 2006,
at [25]))
• Giving voice to vulnerable workers
• Legal consciousness
– Rejects a ‘law first’ enquiry
– Law in everyday life
– In-depth qualitative investigation
Employment tribunals under attack
• Vince Cable called for “radical reform to the employment
law system”
• “far too costly, time-consuming, and complex for
employers”
• “too easy [for employees] to make unmerited claims”
ETs: the changing legislative environment
• Increase to the qualifying period for unfair dismissal
– From 6 April 2012, the qualifying period for right to claim unfair
dismissal rose to 2 years from 1 year
– Vulnerable workers particularly likely to be affected as a greater
proportion of CAB clients with employment problems have been
employed for more than one year but less than two years (15%)
compared with the broader population (10%)
(Dunstan and Anderson, 2008)
• Impending introduction of fees regime for ETs
– £160 issue fee and £230 hearing fee for level 1 claims; £250 issue fee
and £950 hearing fee for level 2 claims; £400 EAT appeal fee and
£1,200 EAT hearing fee, due to be implemented summer 2013
Pilot: ‘Barriers to Justice’
• Citizens Advice Bureaux
– First destination for advice on employment disputes
– Key site for the shaping of vulnerable workers’ legal consciousness
• Pilot study
– Funded by SLS and Bristol School of Law
– 10 interviews with CAB clients who submitted ET1 form
– Intended to lead to ‘case tracking’ study
Profile of interviewees
Findings
• ET process overly formal and technical
– CAB acted as translators of language and procedures into formulations
vulnerable workers could understand
• Power inequalities: case management phone call
– “[judge was] 100%, probably 110%, behind me, which was, that was
the only time I felt, wow. . . someone believes what I’m saying. . . . if it
did go to court, I think I would a had his support, because he was
actually telling the other guys that he thought it was pathetic.”
(Interviewee 1)
– “. . .she would say, ‘Yes, sir,’ or ‘Yes, something,’ . . . . You know like
they’ve got to use, they talk a certain way, and they use certain words
and stuff. Of course, I just felt like, oh my God, I’m going to lose this
case! “ (Interviewee 2)
Findings continued
• Legal representation at the ET considered necessary:
– “Someone told me I could come and represent myself, but . . . I said myself, it
looks stupid if I go and represent myself. And uh, the company got, got this
solicitor, and I’d be tied into knots. So therefore, I thought no . . I’ll just cancel
the whole thing . . .” (Interviewee 9)
• Acas : site of ADR
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Reframing of cases from rights to needs problematic
Tenet of impartiality was disempowering
Pragmatic rationalities of managerialism
Prioritised positive clearance rates, swift resolution
Often felt like bullying to unrepresented workers
Advice Agencies: New Sites of Legal
Consciousness – ‘Citizens Advice Bureaux and
Employment Disputes’
• ERC Starting Independent Investigator grant
– New Sites of Legal Consciousness
• ‘Case-tracking’ research project
• Impact of legislative changes
• How will changes in employment law impact on vulnerable workers’
behaviour?
• Mixed methods research
– Survey before and after ET fees
Research aims
• Understand the role played by CAB advisors
– Observe meetings between CAB advisors and clients
– Observe and talk with CAB staff and volunteers
• Capture implications of the varying levels of assistance and
resources offered by bureaux
– Pro-bono solicitors
– Specialist legal advisers
– Local authority-funded solicitor (Scotland)
• Map interaction with Acas, ET judges, other legal players
– Participants complete diary of their thoughts and experiences
throughout the dispute resolution process
– Observe key events in the case, including interaction with Acas and ET
judges
Building on the pilot study
• Explore range of strategies taken by workers
– Expand sample group beyond those who choose to take cases to ET
• Exploring legal consciousness
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Social relations and sites of cultural production
Understanding power relations
Life history interviews: social, cultural and economic capital matters
Following participants resolving employment disputes
Questions
• What is the role of legal expertise?
• How will ET changes impact on vulnerable workers?
• What about Acas and ET judges?
• What else should we be attempting to capture?
References
• Aston, J. et al (2006), The Experience of Claimants in Race Discrimination
Employment Tribunal Cases, DTI Employment Relations Research series no
55.
• Denvir, A. et al (2007), The Experiences of Sexual Orientation and Religion
or Belief Discrimination Employment Tribunal Claimants (Ref: 02/07) Acas.
• Dunstan, R. and Anderson, D. (2008) Vulnerable Workers: Preliminary
Findings from the Citizens Advice Client Research, Employment Relations
Occasional Paper, BERR.
• Palmer, A. (2012), Opinion: Unfair Dismissal Claims, The Lawyer (11
September) (http://www.thelawyer.com/opinion-unfair-dismissalclaims/1009642.article), accessed 11 September 2012.
• Peters, M. et al (2006), Findings from the Survey of Claimants in Race
Discrimination Employment Tribunal Cases, DTI Employment Relations
Research series no 54.
• Renton, D. (2012) The Coalition’s Reforms to the Tribunal System will
Impair Justice, New Law Journal (27 April).