Tribunals don't add up to a hill of beans

Lawyers may not accept that clients seeking legal advice are in the same position as consumers purchasing a defined product - such as a tin of beans - but we have to accept the present system does not serve the interests of the public, particularly those who are looking for a basic "tin of beans" type legal advice: affordable, substantial and easily accessible.

In the area of employment law, few people are able to engage a lawyer to challenge unfairness or discrimination in the workplace unless they are already members of a trade union with access to legal services or, increasingly, if the small print of their house insurance policy allows some measure of legal cover.

If an employee in difficulty at work searched the internet for legal advice the results produced would direct him or her to a range of advice agencies such as the Citizens Advice Bureau, the Legal Services Agency and, in the Glasgow area at least, to a number of law centres. However, the funding constraints on many of these organisations only allow advice to be given and not advocacy or representation at an employment tribunal.

If that same employee - advised they had a complaint with reasonable prospects of success - then wanted to take the next step to go to a tribunal and instruct a lawyer, they might contact the Law Society of Scotland and use the "find a solicitor" search facility on the website. The list of accredited specialists in employment law, for example, identifies some 39 solicitors. However, barely a handful of these have any meaningful experience of representing claimants. Unfortunately, most accredited specialists in employment law represent the interests of big business, and there is no meaningful distinction to properly direct claimants to firms who undertake any significant claimant work.

The individual is then left to hunt through Yellow Pages to find a lawyer with experience of representing employees that they can afford. Interestingly, some of the larger firms appear to operate an inverse means-test whereby anyone who earns less than 50,000 per year will not get past the first phone call as they clearly could not afford the fees. At fairly standard rates of 250 per hour and 1,500 per day at tribunal, you would need to have a slam-dunk employment complaint that was easily resolved with a large award of compensation to pay these fees. These are few and far between in the real world.

Worse still, you might have a very good legal case that has to be settled or abandoned before the tribunal date because the costs of instructing these particular lawyers might be greater than any award.

Industrial tribunals, now renamed Employment Tribunals, were originally designated as peoples' courts where the individual could forgo legal representation to make his own case to a fair-minded, three-person tribunal made up of a legally qualified chairman, with two lay members, one representing the workers' perspective and the other from the employers' background. While it is still theoretically possible to dispense with the services of a lawyer, all research shows individuals who are represented are awarded higher compensation.

In limited circumstances, it may be possible to access legal aid to fund a complaint to an employment tribunal. The most cost-effective means of support is to join a trade union, as an insurance policy, before any difficulties arise at work. But, for the majority of those who experience difficulties at work, advice and representation can prove impossible, financially and within the tribunals' timescales.

With the advent of the Clementi reforms in England and Wales, we in Scotland are in danger of being left behind with outdated structures that deny justice to large numbers of ordinary people.

Which?'s super-complaint, combined with the Gibbon review, might just afford us the opportunity to recreate the early ethos of employment tribunals to ensure both parties are on an equal footing, with affordable legal representation and funding for the employee as a guaranteed cornerstone of any improved system.

Claimants would then need access to law firms dedicated to fighting their corner, and Scotland would require a better geographical spread of law centres. Until then, for claimants, our expensive and unequal system doesn't add up to a hill of beans.

• Carol Fox is head of equity at Thompsons Solicitors