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Monday, 04 May 2015 10:34

On being a barrister when the world falls in

Written by  David Renton
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The distinction between barristers and solicitors is that we are usually only instructed in the very final stages of any legal procedure. A good moment to speak to a solicitor, in a Tribunal claim, is

around the time that you submit your ET1 claim form. The solicitor can help you to draft it. They can represent you at the early procedural hearings, now known as “Preliminary Hearings”. They can advise you on what a claim is worth and whether to settle it.

 

Many solicitors will only instruct a barrister if the claim is unusually complex.

Barristers will not usually send letters to the employer, chase missing documents, draft the worker’s witness statements. Solicitors do all of these. We get involved, usually, only right at the end of the case, just before the final hearing.

Barristers like to say that our relation to a solicitor is like a consultant doctor’s relationship to a GP. In other words, we come in because of a referral. And we are the experts in the relationship.

Sometimes it is like that. If I am instructed by a high street solicitor, they may work in lots of different areas of law – crime, employment, immigration. They will have a general knowledge of everything and little specific knowledge of employment law.

More often barristers are not like hospital consultants. A specialist employment solicitor (and almost all union solicitors are specialists) may work in employment law every day of their working lives. Their preferred barristers might typically each cover a range of different courts and several different areas of law.

The barrister’s expertise is not really a better knowledge of employment statutes or case-law. Our expertise is that we spend almost every day of our working lives appearing before Judges, and trying to persuade them to make different orders from the ones that they would make if we were not there.

Being in court all the time gives us a sense of the occasional arbitrariness and good fortune that sits just beneath a court decision.

We get involved in cases late. If I am preparing a 2 day trial, I would hope to get the papers for the first time two clear days before the hearing.

When I used to do crime it was entirely normal for me to take over a complex, difficult case with just an hour or so notice. We are expected to be able to adjust with very little warning

Often unrepresented workers get very nervous when the employer has instructed a barrister. You might think – “they do this for a living, they must be terrifying” (and they often are). It also happens sometimes that the barrister may have seen the papers for the first time that morning, may not have had the chance to think at all deeply about the case, and may be seething with the solicitor for the late instruction.

For a year we have had fees – which at £1300 for discrimination or unfair dismissal claims and £390 for unpaid wages – are punitive

The government has also introduced a 2 year service requirement for unfair dismissal, a compensatory award capped to a year’s salary, “protected conversations” and compulsory ACAS conciliation – all of which make it that little bit harder to bring a claim

Fees have been a disaster for workers, unions and for the providers of free legal assistance. Workers are hit by fees which at around a third of the median award for unfair dismissal claims are just too high. In a context where only about half of all claims succeed, only about half of them lead to an award, and only about half of them (or one eighth of all cases) lead to the full payment of the award in 6 months: it is simply daft for anyone to bring an ordinary unfair dismissal claim any more

Unions – who are trying to support the same number of claims, as if fees had never come in – are hit by having to spend millions of pounds on fees for cases which only 18 months ago were free.

Parallel changes to legal aid mean have reduced the number of legal aim employment cases from around 25,000 per year to 32 –reducing the ability of law centres and CAB to assist the most vulnerable workers

But fees have not been a disaster to the same extent for barristers. We always were instructed principally in complex and high value cases. The number of complex faces is falling but not to same the extent as the number of cases generally.

There is a little less pressure on the court timetable, so that cases which not so long ago might take 18 months to be listed are now heard in 9 months or less

It is even my sense that the balance in unfair dismissal claims in particular has swung just a little towards claimants. It is as if judges are telling themselves – “the worker who has got this far has gone through ACAS conciliation, paid their own fees, passed through a different pre-hearing process: they must be serious to have got this far. So I will definitely give them a fair hearing.”

Both of our two main parties now agree that the future will be one in which there are fewer ET claims. This will be no problem – provided that we as a society find other ways of bringing to book those managers who sexually harass or that employers who dismissal arbitrarily or owners who simply do not pay their workers

Last modified on Monday, 04 May 2015 10:39
David Renton

David Renton

Barrister 
Garden Court Chambers 

Website: www.gardencourtchambers.co.uk/barristers/david_renton.cfm E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it
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