The Employment Bar

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 2020

  • 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 2020, almost 8,000 reports of furlough fraud had been reported.
  • The Coronavirus Act 2020 became law on 25 March. This contained an extensive set of provisions equipping the government with temporary emergency powers to respond to the pandemic. Health protection formed a core part of the legislation, allowing employers to recover additional statutory sick pay paid out due to the three-day waiting period being scrapped; rebating to be extended to larger businesses; and the amount of rebate payable to be modified.
  • Summer 2020 saw the government provide further details on the new immigration system set to be 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.
  • In January 2019 the government introduced legally binding executive pay ratio reporting for companies with more than 250 employees. Firms will now have to reveal the gap between the chief executives’ salaries and their average worker on an annual basis.
  • The introduction of employment tribunal fees of up to £1,200 was ruled unlawful by the Supreme Court in 2017. The number of single claims – claims brought by a sole employee or worker as opposed to by a group – in the first quarter of 2018 increased to 9,252, up 118% compared to the year before. The number of tribunal cases had fallen dramatically since fees were introduced in 2013.
  • 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.
  • Many UK workers' rights and employment protections derive from the EU. However, most of these – such as the Working Time Directive – are enshrined in UK law, so are unlikely to change as the result of Brexit as repealing them would be both a legal and political nightmare.

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.