In a nutshell
Employment lawyers guide their clients through workplace-related legislation and are intimately involved in the relationship between employers and employees. The divide between employers’ and employees’ lawyers is often clear-cut so bear this in mind when you pick your firm. Most will work either largely for employers or largely for employees; a few will straddle both sides of the fence. Usually, the job includes both advisory work and litigation.
Disputes are almost always resolved at an Employment Tribunal, or before reaching one, and appeals are heard at the Employment Appeal Tribunal (EAT). The grievances leading to litigation fall into the following broad categories: redundancy, unlawful dismissal, breach of contract, harassment and discrimination. This last type of claim can be brought on the grounds of race, religious or philosophical belief, gender, sexual orientation, disability and age.
There are also employment-related cases with a commercial tint to them, such as rows over team moves between major businesses. These are heard in the courts rather than the Employment Tribunals.
What lawyers do
- Advise clients on whether they have suffered unlawful or unfair treatment and establish the amount to be claimed. This will either be capped or, in the case of discrimination, can include additional elements to cover loss of earnings, injury to feelings and aggravated damages.
- Gather evidence and witnesses to support the claim.
- Try to negotiate a payment from the employer or take the matter to tribunal. If there is a breach-of-contract element to the claim, it might be heard in a court rather than a tribunal.
- If the matter does reach tribunal, the solicitor may conduct the advocacy.
- Defend or settle the sorts of claims described above.
- Negotiate employment contracts or exit packages for senior staff.
- Negotiate with unions to avoid or resolve industrial disputes.
- Formulate HR policies and provide training on how to avoid workplace problems.
Realities of the job
- You quickly develop an understanding of human foibles. By their very nature employment cases are filled with drama.
- Clients may assume your role is to provide emotional support as well as legal advice, so you need to take care to define your role appropriately.
- Solicitors who want to do their own advocacy thrive here, although barristers are commonly used for high-stakes or complicated hearings and trials.
- The work is driven by the procedural rules and timetable of the tribunals and courts.
- The law is extensive and changes frequently. You'll read more than your fair share of new rules and regulations.
- A landmark Supreme Court ruling in July 2017 decided that the increased Employment Tribunal fees introduced in 2013 were unlawful as they 'effectively prevent access to justice'. As a result the government has begun a refund scheme to pay back £32 million in fees which were, in fact, unlawful. The new fees (up to £1,600) had led to a drop of almost 70% in cases brought by employees and a shift among employment lawyers to doing more non-contentious work. Aanecdotal evidence suggests that since the fees were abolished the number of employment claims has shot up, doubling in some cases.
- As of April 2013 legal aid has been cut from all employment cases, except those related to discrimination. This is leading to more people representing themselves.
- The Enterprise and Regulatory Reform Act 2013 brought about a number of changes to employment law. Protection was reduced for whistle-blowers, who now have to show that it's in the public interest to complain about an employer's unlawful act. Also, employers are allowed to have a 'protected conversation' with an employee encouraging them to leave with a pay-off (settlement agreement).
- Gender pay reporting for companies of over 250 people begins in 2016 as a result of the 2010 Equality Act. It includes the reporting of wages and differences in bonuses, with the aim of closing the gender wage gap. The first reports are set to be published by 30 April 2018.
- The Trade Union Act 2016 came into force on 4 May. It gives Britain some of the toughest anti-trade union laws in the western world and means strikes will likely be less common in the future. Amendments were made in March 2017. Under the new rules 50% of a union's members must have voted for a strike ballot to be valid; at least 40% of those must be in support before industrial action can take place. In addition, unions must give 14 days’ notice of industrial action. The validity of the ballot expires after four months.
- In April 2017, the Immigration Skills Charge Regulations 2017 were introduced. These require employers that sponsor skilled workers (under Tier 2 of the points-based system) to pay £1,000 per certificate.
- Brexit could potentially have a big impact on employment law, as many employee protections derive from the European Union. However, EU employment rules do not apply to the UK directly. Instead they are part of UK law either through secondary legislation or Acts of Parliament. They have often been adapted to the UK context too. For example, the well-known Working Time Directive, which grants EU citizens a statutory right to 20 days of paid leave, in the UK provides for 28 days of leave (including bank holidays). Legal experts believe that such laws are too deeply embedded in statute to be easily rewritten, which in turn sets a pretty high political barrier to repealing them.
- Several years will pass before the UK formally leaves the European Union. This is likely to create some confusion among businesses as to which employment-related EU rules they should be adopting and when. For example, companies are set to revise their compliance strategies and employee confidentiality provisions in order to comply with both the EU's General Data Protection Regulation and its Trade Secrets Directive which were formally adopted in 2016 but will not come fully into force until mid-2018. Employers will be required to carry out audits of employee personal data (that they collect and process) to ensure it meets the General Data Protection Regulations. Could it be that a company would spend two years adjusting to comply with such regulations only for them to no longer be applicable a few months later? Theoretically, yes. But the legal framework under which EU law is combined with UK law is highly complex, making such repeals difficult and unlikely.