Employment law: area of practice (barristers)
There is a broad mix of cases in which an employment practitioner might be instructed. One day it may be a one-hour hearing in the employment tribunal relating to the failure of an employer to pay wages. Another day may be the beginning of a lengthy and complex trial taking place in the employment tribunal (such as an equal-pay or whistle-blowing claim), or in the High Court (such as an employee fraud or ‘team poaching’ case).
The extent to which barristers are in court and the number of cases that a barrister will deal with at any time, therefore, will vary from week to week considerably. Some weeks, barristers will spend their time dealing with short interlocutory hearings and paperwork; other weeks will involve lengthier trials.
The worst part of the job is the hours: during busy periods, evenings and weekends are spent in chambers rather than with family members. However, there are a number of rewards for that work. Leaving aside financial gains, the work is interesting and varied and there is a real thrill in achieving a successful result in a piece of litigation, whatever the stakes and in whichever forum it is litigated.
Working with pensions law
Nearly all employment lawyers deal with pension issues at least occasionally. Calculating damages often requires knowledge of pensions law: how pensions are calculated and how pension loss is computed.
Pensions law is also an area of practice in its own right. Complex private and public sector schemes have to be construed, with occasional litigation, usually in the Chancery Division of the High Court.
Pensions law is not for the faint hearted. There is a daunting mix of heavy statutory regulation, a myriad of regulations to wade through and expert evidence from accountants and actuaries to consider.
Dealing with statutory regulation
Employment lawyers need to have a wide knowledge of the core legal subjects. For the most part, employment lawyers will be considering the law of contract –because all employees have contracts of employment of one sort or another – although, alongside that contract, sits a broad range of statutory regulation. In addition, employees can owe fiduciary and equitable obligations to their employers and employers owe their employees obligations (for example, relating to health and safety) in the law of tort.
The area is broadly recession proof. During downturns in the economy, businesses tend to make redundancies leading to litigation. In upturns, employment lawyers may spend more time dealing with bonus claims or other employee benefit issues. That said, employment law has expanded enormously since the mid-1990s and employment tribunals are currently overburdened with cases.
The response of past and present governments has been to attempt to reduce the number of cases considered by tribunals. The present government is consulting at the moment as to whether to increase the period of qualifying service required to bring a claim for unfair dismissal from one year to two years, whether to introduce court fees for tribunal claims and whether to impose mediation on the parties in cases, so as to reduce the number of claims before the tribunals.
As a pupil
Pupillage will vary from one set to another. In some sets, pupils are instructed to appear in straightforward cases during their second six but, in others, pupils are not permitted to accept instructions until the completion of pupillage. However, all pupils will be able to represent clients in the employment tribunal, if they wish to do so, through the Free Representation Unit. Most chambers support pupils in undertaking such work.
Types of law practised
Good employment law barristers have…
- The capacity to work on extremely complex cases, both legally and factually.
- The ability to deal with a broad range of people.
- The energy and persistence to manage long working hours.
TIM KERR QC and SIMON FORSHAW are both barristers at 11KBW and studied law at the University of Oxford. Tim was called to the Bar in 1983, was appointed QC in 2001 and specialises in administrative law, sports law and employment law. Simon was called to the Bar in 2004; he specialises in employment law.