In a nutshell
The Employment Bar deals with any and every sort of claim arising from the relations or breakdown of relations between employees and employers. Disputes relating to individuals and small groups of employees are generally resolved at or before reaching an employment tribunal. Such 'statutory' claims may relate to redundancy; unfair dismissal; discrimination on the grounds of gender, sexual orientation, race, religion or age; workplace harassment; breach of contract; and whistle-blowing. Previously employment judges sat with two 'wing members' (one from a trades union and one from a business background); now they sit alone. Appeals are heard by the Employment Appeal Tribunal (EAT).
In low-value cases claimants often represent themselves, meaning a barrister acting for a respondent company faces a lay opponent. In complex, high-value cases both parties usually seek specialist legal representation from solicitors and barristers.
Employees and employers may also bring claims in civil court. High-value claims, applications for injunctions to prevent the breach of restrictive covenants, and disputes over team moves or use of trade secrets are usually dealt with in the County Courts or the High Court. These disputes make up a significant proportion of the work undertaken by senior members at sets at the top of the market.
Realities of the job
- For pupils and juniors, most advocacy takes place in employment tribunals or the EAT, where the atmosphere and proceedings are less formal. Hearings are conducted with everyone sitting down and barristers do not wear wigs. The emphasis is on oral advocacy.
- A corporate respondent might pay for a QC, while the applicant’s pocket may only stretch to a junior. Solicitor advocates feature prominently in tribunals.
- Tribunals follow the basic pattern of examination in chief, cross-examination and closing submissions; however, barristers have to modify their style, especially when appearing against someone who is unrepresented.
- Employment specialists need great people skills. Clients frequently become emotional or stressed, and the trend for respondent companies to name an individual (say, a manager) as co-respondent means there may be several individuals in the room with complex personal, emotional and professional issues at stake.
- Few juniors act only for applicants or only for respondents. Most also undertake civil or commercial cases. Some undertake criminal matters.
- Employment law changes quite rapidly and sometimes cases are stayed while others with similar points are heard on appeal.
Current issues
October 2023
- The Coronavirus Job Retention Scheme, commonly known as the 'furlough' scheme, was introduced to protect jobs and subsidise wages paid to employers through government support. While providing necessary protection, 'furlough fraud' has emerged in response to the scheme. HMRC is currently investigating a significant number of companies for fraudulent furlough claims, which saw companies claiming government support while illegally asking staff to work. As of August 2022, nearly 14,000 whistleblowers had reported instances of furlough fraud committed by their employers, according to HMRC. A report by Pinsent Masons outlines one significant case where someone in India UK claimed £27.4 million in furlough payments over 14 months of the pandemic. The individual had never been to the UK, but claimed pay for over 2,700 employees that didn’t exist. HMRC recovered £26.5 million.
- Summer 2020 saw the government provide further details on the new immigration system which was introduced in 2021. Across the proposals, the cap on the number of sponsored workers allowed to enter and work in the UK is to be abolished; the new 'resident labour market test' is to be scrapped; and there are changes to how migrants can qualify for 'skilled worker' visas, as well as who will be eligible for the new 'Health and Care' visa.
- As per the High Pay Centre, a think tank that advocates for fair wages, by 2 pm on the third working day of the year, a chief executive officer (CEO) of a company listed on the FTSE 100 index will have earned more per hour than the annual salary of an average UK worker. This highlights the significant wage disparity between top executives and the regular workforce.
- A number of legal challenges have emerged concerning employment status in the 'gig' economy. A successful tribunal case was brought by two Uber drivers against the company arguing that they should be classified as workers; the case was upheld at the Court of Appeal. A group of 50 Deliveroo couriers won a six-figure payout from the takeaway delivery firm after arguing they had been unlawfully denied employment rights.
- In the aftermath of Brexit, the Retained EU Law (Revocation and Reform) Bill is currently undergoing review. As many of the UK's employee protections originated from EU legislation, the impact of Brexit on employment law is still being assessed in the country. This bill proposes that any EU employment laws retained since Brexit will be terminated on December 31, 2023. This includes significant regulations like the Working Time Regulations and the Maternity and Parental Leave Regulations, which are currently integrated into the UK's legal framework. The purpose of this review is to evaluate these laws and determine whether to retain them, introduce new domestic legislation, or allow them to lapse automatically by the end of the year.
- As debates continue to swirl surrounding zero-hours and flexible contracts, in February 2021, the Supreme Court ruled that Uber drivers should be entitled to worker status, giving them minimum wage, holiday pay, pension rights, sick pay and more. There are some caveats for things like pension contributions, with drivers having to complete a certain number of hours in the year. The drivers in this landmark class action employment case were represented by Leigh Day.
- As the online media industry grapples with rising uncertainties in profits and potential staff layoffs, a new trend is emerging – the unionization of online-only media organizations. Pioneered by outlets like Buzzfeed and Vice UK, there is a growing push for the entire industry to follow suit due to the prevalence of precarious working conditions in online journalism. In an unexpected turn of events, reporters at ProPublica, an investigative journalism non profit, also decided to unionize in 2023. This move highlights a broader trend of labor organizing gaining momentum in the journalism sector, reaching even unexpected corners of the media landscape.
- According to the Times,2023 reports indicate that the gender pay gap in the UK has shown minimal improvement. Around 80% of companies continue to exhibit a disparity, where male employees receive higher average pay than their female counterparts. Government data highlights significant gender pay gaps in sectors such as banking and education. Specifically, women in the banking sector earn, on average, 22% less than their male colleagues. Furthermore, the gender pay gap in the education sector has increased by 0.9% compared to the previous report.
- The Carer's Leave Bill has been introduced in parliament and is expected to undergo all the required stages of approval in 2023. The primary objective of this legislation is to make carer's leave a fundamental entitlement from the initial day of employment. This provision will enable workers to take unpaid leave to tend to or arrange care for a dependent individual who requires long-term assistance.
Some tips
- Get involved with the Free Representation Unit. No pupillage application will look complete without some involvement of this kind.
- Practically any kind of job will give you first-hand experience of being an employee – an experience that is not to be underestimated.
- High-profile cases are regularly reported in the press, so there’s no excuse for not keeping abreast of the area.