Most employers have lawyers, but many workers do not: the case for duty solicitors in employment tribunals

Introduction

The Employment Rights Act of 2025 will be a significant part of this Labour government’s legacy. It is an outlier to the supposed ideological vacuum of ‘Starmerism’: a genuine social democratic policy that widens the opportunities workers have to seek redress in the employment tribunal. Indeed, it is contentious enough for Reform UK to announce that they will scrap it in their ‘Great Repeal Act’ should they win the next election.[i] It takes only a quick scroll through the LinkedIn pages of HR professionals, and law firms representing employers, to see that many are bracing themselves for a higher volume of claims. The ERA is undoubtedly an Act that nudges the balance of power slightly in favour of the worker. A significant problem, however, remains.

 The employment tribunal attracts a high proportion of ‘litigants in person’, individuals or organisations representing themselves in court without a barrister or solicitor. In the year 2023-2024, just over a third of claimants in the employment tribunal were self-represented.[ii] Respondents can also self-represent, but the number choosing to do so is much lower.[iii] In short: most employers have lawyers, many workers suing their former employers do not. There is therefore an asymmetry in legal representation between self-represented claimants and represented respondents. This inequality is set to worsen. The number of employment tribunal claims will likely increase once the ERA comes into force, given that the Act will double the limitation period for employment claims[iv] and abolish the two-year qualifying period for unfair dismissal claims.[v]

 This asymmetry could be addressed by providing all litigants in person at the employment tribunal with what they lack: legal advice through a ‘duty solicitor’. Duty solicitors already exist in the criminal legal system. A criminal duty solicitor is a qualified criminal defence solicitor who offers free and independent legal advice and legal representation where an arrested individual is not legally represented. In my proposal, the role of the duty solicitor in the employment tribunal would be to provide legal advice to an unrepresented claimant on the prospects of their claim (this would work the same way for an unrepresented respondent, where the advice would be on the prospects of them successfully defending the claim).

 The development of the modern employment tribunal

The Donovan Commission of 1968 was an inquiry into UK labour law chaired by the Labour peer, Lord Donovan. Its recommendations were embodied in the Industrial Relations Act of 1971, and led to the creation of the first industrial tribunals, later called employment tribunals, courts dealing exclusively with employment and workplace discrimination-related matters. The Report envisioned that employment tribunals would be ‘easily accessible, informal, speedy and inexpensive’.[vi] A 1973 account stated that the new tribunals would be accessible to a wide public, providing readily available help to ‘the man in the street’.[vii]

 The modern employment tribunal is not so easy to use for the ‘man in the street’. In part this is because, as Susan Corby has argued, legal regulation has replaced collective regulation of employment disputes.[viii] In 1979, trade union membership peaked at 50% of the workforce.[ix] High union membership made it more likely that a lay person would sue their employer with legal support from their trade union. As of 2024, trade union membership has fallen to just 22% of the workforce, the lowest level on record since 1995.[x] This decline is mirrored by the low number of claimants represented by a union at the employment tribunal: in 2023/2024, just 3282 claimants had trade union representation, compared to 21,304 self-represented claimants.[xi] Trade unions therefore play a significantly smaller role in representing claimants in an era where fewer workers are unionised, with the consequence that non-unionised workers are more likely to make claims with no legal representation.

 The experience of self-representing at the employment tribunal

The existing research on the experience of self-represented claimants to employment tribunals paints a concerning picture. One study showed that claimants who could not afford legal representation, but could access trade union or pro bono representation, saw employment tribunals as barriers to justice.[xii] One claimant described the completion of the ET1 claim form – a document a claimant sends to the employment tribunal setting out the legal basis of their claim – as a difficult and confusing experience due to a lack of advice.[xiii] Another described the respondent’s solicitor as ‘intimidating’ and felt that the circumstances around the hearing were unequal.[xiv] Even the experience of negotiating a settlement through Acas conciliation (a service run by the impartial body Acas to help parties settle claims) felt confusing, with some interviewees describing the service as having a ’policing’ rather than facilitative role.[xv] In a recent study by Acas on the experiences of self-representing claimants, claimants stated that during hearings they felt ‘alone’, ‘inexperienced’ and ‘out of their depth’.[xvi] In contrast, the employers who participated in the study felt well-supported by their lawyers, consultants and HR professionals.[xvii] The unrepresented claimant and the represented respondent are not, in practice, on equal footing.

 A further disadvantage of self-representation at the employment tribunal is that litigation is not financially risk-free. Unlike in the civil courts, claimants are not obliged to pay the respondents’ legal costs if they lose their case in the employment tribunal. Consequently, the employment tribunal is often dubbed a ‘costs free jurisdiction’. However, judges can order a claimant, legally-represented or not, to pay a respondent’s costs – even where the individual has no means of payment, if for example the claim is considered to be vexatious or has no reasonable prospects of success.[xviii] Furthermore, there are hidden financial losses that come with self-representation. Running one’s own case is so time-consuming that it can morph into a full-time job. In turn, it restricts the time a claimant can spend seeking alternative employment. The claimant may not be paying a lawyer to run their case, but they are unlikely to be earning money during the time spent on their own litigation.

 High numbers of unrepresented claimants can also pose a different problem: poorly-informed litigants. The widespread and largely free availability of generative AI tools such as ChatGPT has led to increasing numbers of claimants substituting them for legal advice.[xix]  This has forced judges to be on the alert to error, and to take additional care when considering the weight to apply to evidence. Indeed, the latest Judicial Guidance on AI warns judges that litigants in person, in particular, lack the skills to independently verify legal information provided by AI.[xx] The potential for generative AI to make errors can lead to longer hearings and greater workloads for judges where claimants rely on it to build their case and do not independently verify legal information.[xxi] The significant disadvantages of self-representation at the employment tribunal, and the challenges that accompany it, demonstrate the need for litigants in person to have uninhibited access to legal advice.

 At the second reading of the then Employment Rights Bill, Angela Rayner opened the debate by stating: ‘When the Government took office and I took this job, we promised the biggest upgrade to workers’ rights in a generation, nothing less than a new deal for working people.’[xxii] The government has given workers the tools to secure greater rights in the workplace. Yet in a highly professionalised employment tribunal, where most employers are equipped with lawyers, the individual worker is not best placed to yield these new tools. Labour is telling workers that there is a ‘new deal’, that they have more rights: but rights without representation mean little in practice. A duty solicitor for the employment tribunal could fix that problem.

 The solution: a duty solicitor scheme for employment tribunals

A duty solicitor scheme could also enable employment tribunals to run more efficiently.  As outlined above, the scheme would involve a duty solicitor becoming available to advise the litigant as soon as a claim is lodged. The litigant would then decide whether to retain a solicitor or proceed unrepresented. Regardless of their choice, access to preliminary legal advice could allow the litigant to present a more focussed claim or response. They could then move forward with an informed view about the merits of their claim, and would be less likely to raise irrelevant matters that might prolong hearings. Equally, a litigant who may not have previously felt the need for legal advice might change their mind after contact with a duty solicitor.

 A duty solicitor model similar to my proposal has been implemented in some employment tribunals voluntarily by the Employment Lawyers Association (ELA). The Employment Tribunal Litigants in Person Support Scheme (ELIPS) is a voluntary duty solicitor scheme run by the ELA. After three years of the scheme feedback from users has been very positive, with one user stating they “genuinely have doubts over whether I could have managed alone”.[xxiii] Equally, the lawyers who volunteered for ELIPS reported that it improved their advocacy skills and exposed them to new work. However, the limitation of ELIPS – as with all pro bono services – is that it relies on the availability and goodwill of volunteers. The introduction of a universal duty solicitor style-scheme for employment tribunals would help reach unrepresented parties who might otherwise fall through the cracks, and, most importantly, eliminate the risk of an unrepresented party participating in legal proceedings without proper advice.

 A tribunal fit for the person on the street

The employment tribunal was designed to be a court accessible to the ordinary worker. Yet the high numbers of unrepresented claimants bringing claims against represented respondents shows just how far the employment tribunal has moved from its original design as a lay-person friendly tribunal. The duty solicitor scheme would help claimants secure better access to justice, and help tribunals save time lost to weak claims and irrelevant issues. Like preventative care in medicine, legal advice from the outset would lower risk in the long run.

 Politically, the Employment Rights Act is a significant achievement for social democrats. But a failure to tackle the imbalance of legal representation in employment tribunals will threaten the Act's longevity. If the ERA is to endure as a part of the Starmer government’s legacy, individual workers must be able to feel its impact. Just as Sure Start centres and child trust funds are often cited as the hallmarks of the Blair and Brown governments, this government’s record may rest on an unfairly-dismissed worker being able to say that they could secure compensation more easily because of the ERA. A duty solicitor scheme that makes the employment tribunal accessible to the person ‘on the street’ would help secure that legacy.

Charlotte Tosti is an opinion writer and barrister specialising in employment and discrimination law.

[i] Aletha Adu, ‘Reform UK promises to scrap flagship Labour worker and renters’ protections’, www.theguardian.com, 24 February 2026.

[ii] Ministry of Justice, ‘Tribunal Statistics Quarterly: April to June 2024’, www.gov.uk/government/statistics, 3 October 2024.

[iii]  ‘Neil Rose, ‘Fewer than half of employment tribunal claimants use lawyers’, www.legalfutures.co.uk,  13 July 2020.

[iv] Employment Rights HL Act (2024-2026) 81, sch 12.

[v] ibid, sch 3.

[vi] Report of the Royal Commission on Trade Unions and Employers Associations 1965-1968 (Chairman Lord Donovan, Cmnd 3623), para 572 cited in Renton, D, Struck Out: Why Employment Tribunals Fail Workers and What Can be Done, Pluto Press, 2012, p.11.

[vii] R.M Greenhalgh, Industrial Tribunals, a Practical Guide (London: IPM, 1973), p.18 cited in Renton, D, Struck Out: Why Employment Tribunals Fail Workers and What Can be Done, Pluto Press, 2012, p.11.

[viii] Corby, S. ‘British employment tribunals: from the side-lines to the centre stage’ Labor History, Vol. 56(2), 2015, p.160.

[ix] ibid, page 162.

[x] Department for Business & Trade, ‘Trade union membership, UK 1995 to 2024: statistical bulletin’, www.gov.uk/government/statistics, 22 May 2025.

[xi] Ministry of Justice, ‘Tribunal Statistics Quarterly: April to June 2024’, www.gov.uk/government/statistics, 3 October 2024.

[xii] Busby, N & McDermont, ‘Workers, Marginalised Voices and the Employment Tribunal System: Some Preliminary Findings’, Industrial Law Journal, Vol. 41(2), 2012.

[xiii] ibid, p.166.

[xiv] ibid, p.175.

[xv] ibid, p.176.

[xvi] Acas, ‘Independent research: Characteristics and drivers of disability discrimination employment tribunal claims’, www.acas.org.uk/research-and-commentary, 12 September 2024.

[xvii] ibid.

[xviii] Rule 82 ; Courts and Tribunals Judiciary, ‘Presidential Guidance (England & Wales) – General Case Management’, 22 January 2018, p.25.

[xix] Maxine Reed, ‘Does Chat GPT have a place in disputes?’, www.trethowans.com, 24 January 2025. 

[xx] Courts and Tribunals Judiciary, ‘Artificial Intelligence (AI) – Judicial Guidance’, www.judiciary.uk/guidance-and-resources, 15 April 2025, p.7

[xxi] Ibid.

[xxii] HC Deb 3 February 1977, vol 389, cols 973-76.

 [xxiii] Employment Lawyers Association, ‘Employment Tribunal Litigant in Person Support Scheme: three years on’, www.elaweb.org, 1 March 2018.