Gibraltar Corruption

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Letter to the Editor of the Gibraltar Chronicle, 6th May 2024

Dear Sir,

A year ago, you published an article about the appointment of a full time and a half time Employment Tribunal (ET) Chairpersons, together with four “freelance” Chairpersons, lawyers working in law firms or private practice who occasionally function as ET Chairperson. According to the Government, this was needed to tackle a backlog of cases and to help make the service “accessible to all”. My analysis of the status of this backlog and the quality of the ET to date is based on many chats with lawyers, politicians, NGOs and employees who went through ET proceedings.

The ET's history dates back to October 2016 when the law directing the Industrial Tribunal was changed. The centrepiece of this legislation is its Overriding Objective: proceedings need to be quick, cheap and easy by ensuring that the parties are on an equal footing, avoid unnecessary formality and delays. This is in accordance with the legal maxim “Justice delayed is Justice denied”. No fees have to be paid when filing a claim in the ET.

Before the appointment of a full time Chairperson, some lawyers “volunteered” for very low fees to play Chairperson. Such a Chairperson was paid £200 for each session of the ET and £100 per Judgement. These fees were ridiculously low in comparison with the hourly fees lawyers can charge in their private practice, which most likely explains the existence of the backlog. In Gibraltar's small legal community of about 300 lawyers, the use of lowly paid “volunteers” could lead to suspicions of amateurism, favouritism, political influence and corruption. I am not saying that this happened, but “Opportunity makes the thief”, comes to mind. That set-up obviously was not ideal.

This brings us to the European Convention on Human Rights' Article 6 “Right to a fair trial”, which mentions;
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;"
This Convention is repeated in Gibraltar's Constitution. The requirement for an “independent and impartial tribunal” was not fulfilled with the “volunteers” playing Chairperson. What a “reasonable time” means, can be found in case law of the European Court of Human Rights: simple employment cases have to conclude in 1.5 years, including all appeals. After this it is a breach of Human Rights as the Government has not provided a functional ET and the Government becomes liable to pay compensation.

In October 2021 and 2022, you published four articles exposing that around sixty cases were awaiting the appointment of an ET Chairperson, several of them waiting several years. These people's Human Rights have been breached. There is as well another breach of Human Rights: paragraph “(c)” of the Convention refers to the legal principle of “Equality of Arms”. Under the present Legal Aid and Assistance rules, it is not possible to get Legal Assistance in the ET. This goes against the Convention and against Gibraltar's Constitution. The reality is that many employees are forced to defend their claims themselves as litigants-in-person. I have spoken with several such people. They all complain about running out of savings and the high stress it brings to have to plead against employers hiring top law firms. This goes against the interests of Justice and constitutes a breach of Human Rights.

A 2022 ET Judgement refers to the principle of open justice, meaning that every single ET Judgement has to be published online. The ET's web page shows that there must be 399 cases falling under the 2016 legislation. Only 27 led to a full Judgement following a hearing, this is 6.8%. In 146 cases, or 36.6%, the claim was withdrawn, which could mean that a settlement was reached or the disadvantaged employee gave up. This leaves 226 cases, a staggering 56.6%, of which no information is published. This obviously does not achieve the open justice referred to. All cases should be published to achieve transparency and accountability, and even more important, the published Judgements are the only local source of case law for litigants-in-person. Another problem faced by unrepresented claimants is that hearings are not public as they are nowhere advertised. Attending hearings could bring valuable insights to litigants-in-person. At times, the ET did not give correct information, potentially negatively affecting claims. This would improve if the ET were run by the Ministry of Justice and not by the Department of Employment, as is the case at present.

The 2016 changes of the ET and the appointment of a full time Chairperson are definitely an improvement but they do not prevent abuses of the proceedings. The unacceptable long duration of many cases leads to stress, anxiety and depression. I know of at least one person who became homeless while others have to live off £40.50 per week from Social Services after their funds ran out. Unscrupulous employers have the possibility to wage a war of attrition against their former employees who dare to take them to the ET to find Justice. Many claimants gave up for this very reason and, if lucky, with an unsatisfactory low settlement. The strategy to wear claimants out financially and emotionally at times has been extreme, I know of one case where the claimant, a vulnerable person suffering from depression, was cross-examined for eighteen hours over four days, resulting in additional mental harm. A dysfunctional ET will eventually harm Gibraltar's economy as valuable and highly qualified professionals might prefer not to work in a jurisdiction which does not properly defend employees' rights.

Yours sincerely,

Bart Van Thienen

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