As least in the minds of some, the announcement that the Government will be taking steps to regulate employee advocates came as something of a surprise. Not so much to members of the employment law community, however.
In distinction to most other jurisdictions, employment law allows – people who are not qualified as lawyers to act as counsel in a legal forum. The practice probably has its origins in the union movement several decades ago – where union advocates were legitimately skilled in advancing points on behalf of their unions – but weren’t necessarily legally qualified.
What has arisen over the last decade, however, is a more concerning practice – where non-legally qualified advocates act for employee complainants – often on a “no win no fee” basis.
Lawyers are constrained in their ability to act on contingency fee arrangements – and, amongst other things, are ethically prevented from drumming up litigation where to do so is irresponsible.
The same constraints are not placed upon advocates, however, and there is a view (at least held by a number of lawyers) that, in this way, advocates are bad for the employment law system.
In my view, advocates have a legitimate place to play in the employment law jurisdiction – and those of them who act responsibly should have no fear about the introduction of regulation to control their behaviour.
It would seem, however, that the Government has a view that the actions of some require limitation and control.
See if you relate to this scenario.
Something we hear a lot in our employment law (and, indeed, in most areas of litigation) is that, in any particular case, one party “won” and the other “lost”.
It’s a phrase we’re used to hearing in mediation when an employee agrees to exit, but wants to advantage him or herself in finding their next role : better to be in a job when trying to find a new job.
As a general rule, litigation before the Employment Court has been in the decline over recent years.
