Ministry of Justice (MoJ) plans to pilot Sunday magistrates’ courts have been hit by a technical hitch after prisons said they could not accept new prisoners on that day, writes Elizabeth Davidson. However, its pilot of full-day Saturday courts is still on schedule to begin in the Manchester area this weekend, despite vocal opposition from local criminal lawyers, some of whom claim taking part could leave them vulnerable to expensive employment tribunal claims.
Currently, magistrates’ courts hear bail applications on a Saturday morning, and usually finish about 11am. During the pilot, they will deal with cases and could sit for a full working day. Criminal lawyers complain the plans are ‘chaotic’, have not been sufficiently thought through and have been introduced with little consultation.
As pointless as a broken pencil
Franklin Sinclair, senior partner at Tuckers Solicitors, said: ‘It’s a political gesture, as pointless as a broken pencil, and of absolutely no use.’
‘We were originally told about this at the beginning of August. There were meetings about it between everybody who works in justice but the defence, then they told us there would be a full-day court on the Saturday and Sunday. This was originally going to begin on the last Saturday in August then it was put back to 16 September and now it’s to start on 29 September,’ continued Sinclair. ‘The Sunday court has now been either abandoned or postponed. [The MoJ] gave the reason for this as that the prisons either couldn’t or wouldn’t open to new prisoners on Sundays therefore there was no point in having a Sunday court.
‘I have been incredibly annoyed, especially about the plans for a Sunday court, because of the lack of consultation and the fact we have been treated with utter contempt. There is no question of giving us any more money, and our rates have already been cut hugely, but they seem to think, “those idiots will do it”.’
Sinclair said: ‘They have linked this to the courts opening extra hours during the riots and say they worked then, and that they want swifter justice, but it was awful during the riots because the courts had nothing to do for long periods of time.’
Allan Maidment, of Maidments Solicitors, said: ‘I can’t compel my staff to work weekends – what is envisaged is outside their contract of employment.
‘On a personal basis it causes huge difficulties for staff – for example, a single mother solicitor would have to arrange childcare.’
‘We were given two or three weeks’ notice of this. We are being asked to breach contracts of employment, putting ourselves at risk of unfair dismissal claims, and for no extra money.’
Maidment said there was no reason for the change since magistrates’ courts’ workloads are decreasing – ‘Liverpool magistrates’ court, for example, does 14% less work year on year.’
He also points out that it will cost more public money as court staff, prosecutors, security staff, prison transportation staff and probation officers will all have to be paid for extra hours.
Maidments, and four other large criminal law firms, are seeking advice from employment lawyer Gordon Turner, who has previously advised legal aid firms tendering for block contract work (he advised them that TUPE could apply to block contracts. The government later dropped the plans).
According to Turner, asking staff to work weekends contrary to their contract and for no extra pay could leave firms exposed to claims of constructive dismissal, or indirect discrimination if certain groups are affected.
Chritopher Milsom, an employment barrister at Cloisters, who is also advising the firms, said the plans may potentially fall foul of the Equalities Act.
‘My view is that there are potential matters to consider in extended weekend working,’ he said.
‘If insisted on, it puts women and people with caring responsibilities at a potential disadvantage, and if there is no justification for this then it may be indirect discrimination.
‘Under the Equalities Act, ss 109-112, in so far as the MoJ is instructing this it could amount to an instruction or inducement to breach the Equalities Act. Obviously there are lots of caveats to that – you would have to show clear evidence that people are disadvantaged, but if that evidence is there then there are wider consequences not just for the individual courts or firms affected but those providing the order that Saturday working take place.’
Milsom said the 2010 case of Shackletons v Lowe shows it is well regarded among the judiciary that weekend working puts women at a disadvantage because they are more likely to have caring responsibilities.
This presents the possibility that an employee at one of the law firms affected could take the MoJ to an employment tribunal.
An MoJ spokesperson said: ‘We are working with local areas to test whether a more flexible criminal justice system is able to better respond to the needs of the public, including victims and witnesses.
‘This includes courts sitting outside of traditional hours during the week, sitting at weekends and increasing the use of video technology. This is to ensure we are able to deliver swift and effective justice.
‘The equality impact of flexible courts was considered as part of the Equality Impact Assessment produced for the Swift and Sure Justice White Paper, which was published in July this year.
‘The pilots have been developed in line with public law obligations and will be evaluated to inform any future decisions.’
- JusticeWatch: Toppling the fourth pillar - 12th April 2019
- JusticeWatch: Book now for Sharing Solutions Conference - 5th April 2019
- JusticeWatch: The towns where there’s no access to free legal advice - 29th March 2019
- Hackney Community Law Centre threatened with closure after cuts funding - 29th March 2019
- Mind the gap: the case for a law centre in Lewisham - 22nd March 2019
- JusticeWatch: Sharing Solutions Conference - 15th March 2019
- JusticeWatch: Courageous advocates - 8th March 2019
- JusticeWatch: Right to rent ruling - 1st March 2019
- Grayling’s rehabilitation revolution ‘set up to fail’ - 1st March 2019
- JusticeWatch: Supporting the next generation of social welfare lawyers - 22nd February 2019