Employment
Employment law: nice work if you can find it
Polly Botsford assesses the current state of employment law and practice post R (Unison), and evaluates this interesting - but highly competitive - field.
About the author
Polly Botsford is a freelance legal journalist.
‘Employment law has something for everyone,’ says Millicent Grant, President of CILEx, who practised employment law while she worked for the London Borough of Hackney in east London. ‘It’s fascinating, challenging and human: it’s real-life situations dealing with real people, often in quite vulnerable situations.’
Employment law is also in the news a lot. 2016 saw the start of a number of cases against taxi and delivery platform, Uber, where its drivers were found to be ‘workers’ not self-employed, which means that they are entitled to the national minimum wage and paid holiday ((1) Aslam (2) Farrer and others v (1) Uber B V (2) Uber London Ltd (3) Uber Britannia Ltd 2202550/2015 and others). (Uber has appealed. It is reported that the hearing has been listed to take place over two days, starting on 27 September 2017.) This court decision opened up a debate about the so-called ‘gig economy’, which led to the launch of the Independent Review of Employment Practices in the Modern Economy by the Department of Business, Energy and Industrial Strategy. Matthew Taylor, chief executive of the Royal Society of the Arts, led the review, which published its report in July.¹
Employment law also hit the headlines earlier this year, when the media covered the story of a woman working for a company which ran the reception for accountancy giant, PwC, who was told to go home, without pay, unless she wore heels that were between two and four inches high. Following a petition to government to make it unlawful for companies to request women to wear heels to work, an inquiry by the House of Commons Petitions Committee (HCPC) and a joint report by the HCPC and the Women and Equalities Committee, the government has agreed that better guidance needs to be put in place (the government’s legal position was that no legislative reform was necessary as it is already unlawful to insist that a woman wear high heels where a man is not subject to the same stringent codes).²
So far, so interesting. But the practice area has hit real problems caused by two factors: the introduction of fees into the court system, which has drastically reduced the volume of cases; and the increasing visibility of non-lawyer, unregulated consultancies that offer employment law advice at lower cost. While employment law remains an interesting and relevant area of law, competition for jobs and work is intense: one recruitment consultant described the employment law job market as ‘frankly awful’.
In July 2013, fees were introduced into the employment tribunal (ET) and the Employment Appeal Tribunal, the courts which have jurisdiction to hear employment law cases. Up until that point, unlike the High Court, there was no cost to bringing a claim. The then coalition government introduced a number of policies which aimed at transferring the cost of the courts from taxpayers to those actually bringing claims. It also wanted to encourage parties to use other methods to resolve disputes. Subsequently, the government has also argued that the introduction of fees has reduced abuse of the system by vexatious litigants and 'chancers'.
The impact of fees on case numbers has been phenomenal: the total number of cases in the ET before fees were introduced was 195,570 in the second quarter of the financial year of 2012/13 to 43,951 in the first quarter of 2013/14, a staggering 78% drop. The negative effect on lawyers’ workloads is clear: all employment lawyers and practices have felt it to a greater or lesser extent.
Jonathan Fagan runs Ten-Percent Legal Recruitment, which handles Chartered Legal Executive and solicitor recruitment. He says that the recruitment market for employment law plummeted as a result: ‘Between around 2010 and 2012, there was a fairly healthy level of employment law vacancies for fee earners. But this dropped off hugely, by a staggering 90%, in 2013 when the fees were introduced. This level has stayed low and just not recovered. Those scarce opportunities there are tend to be locum or in-house roles.’
The ET fee scheme has, however, been the subject of a number of legal challenges in the courts, and also a review by the Ministry of Justice published at the beginning of the year.³ In July, a challenge by Unison was put before the Supreme Court and, in a dramatic turn around, the court ruled that fees were unlawful (R (Unison) v Lord Chancellor [2017] UKSC 51, see pages 31–33 of this issue). It is unclear what will happen next, however, and most experts say that fees will be reduced not abandoned altogether. Jonathan Fagan concludes: ‘We are unlikely to see a dramatic increase in cases in the short term.’
However, ET fees are not the only issue. Law firms have also had to confront another problem in their employment law practice areas: fierce competition from non-lawyer consultancies. This stems from the fact that you do not need to be a lawyer to represent someone in an ET. The ET has always been a much more informal court, with no strict rules on rights of audience, which has led to the development of a non-lawyer market representing clients there and at lower cost.
Of course, consultancies can also provide opportunities for Chartered Legal Executives. Richard Llewellyn-Bell was once in the RAF Police before he had a complete career change and became a Chartered Legal Executive. He set up a non-law firm consultancy, Bell Taylor, in 2013 in Shropshire, which now has three practitioners.
Bell Taylor’s business model is to offer work on a fixed fee/ retainer basis. Richard Llewellyn-Bell explains: ‘Employment law lends itself to a retainer arrangement. Businesses do have peaks and troughs, and a retainer evens the cost out. It also gives the client the security it needs about what the cost will be.’ But he says that the employment law market is ‘very competitive. There are consultancies out there which adopt very aggressive sales and marketing techniques to try and win clients.’
Some employment law departments have fared better than others through these competitive times, and it is difficult to see how the situation will improve in the medium and long term. But Kelly Gibson, a Chartered Legal Executive at Taylor & Emmet’s Sheffield office, is optimistic about the future for employment lawyers: ‘There are always people with employment law issues.’
She also observes that more employees do have legal expenses insurance, which can assist them financially in bringing claims. Lawyers have the added option to work under a damages-based agreement on a no-win, no-fee basis for some cases. But, of course, this does carry risk for the law firm. She says: ‘You have to be very careful from a business perspective, particularly since you will not be receiving any fees upfront.’
Employment law will, regardless of the market, remain a popular choice for many students for a reason. ‘No two days are the same,’ says Kelly Gibson, who took the Graduate Fast-track Diploma route by distance learning with CILEx: ‘One day, it might be advising on holiday pay from an employer’s perspective, the next day, it might be helping someone who has been made redundant.’
There are contentious and non-contentious options. Kate Kapp is an Associate member of CILEx working at specialist employment firm, Doyle Clayton, having joined there, as a paralegal, in 2014. Her work is mostly respondent (ie, representing the employer) and has, on average, 15 litigation cases running in any month. She was attracted by the litigious nature of the work: ‘I knew I was going to be looking for contentious work. It can take over your life if you are not careful, but it is absolutely the job I always wanted – and now I have it.’
Laura Jeal is also attracted by the litigation. She is currently studying her Level 6 qualification at CILEx Law School, and works at regional firm, Herrington Carmichael. She was originally a legal secretary, but changed roles (and firms): ‘Litigation is very interesting because you see a situation from varying points of view, and where people have their own impression of what happened; often, there are completely different accounts of the same event!’
Employment is technically very engaging too, says Millicent Grant: ‘There are these more intellectual aspects such as what is known as TUPE legislation.’ This law protects employees when businesses are bought and sold, or services outsourced, and is highly complex.
Being an employment lawyer requires a number of different skills, however, regardless of whether you are in the tribunal or outside of it. Matthew Ainscough is a Fellow of CILEx, who qualified, in 2014, having originally started on the solicitor track. He currently works for Martin & Co, a specialist employment law firm in Manchester.
He says: ‘You have to be interested in people, and be able to manage their needs, assisting them through a difficult process.
But, also, you need to be able to deal with quite a complex area of law, and to unpick the legal knots. Added to which, there is a substantial volume of new case law coming through, so you have to make a concerted effort to stay up to date.’ Last but not least, employment law workloads appear to be particularly prone to the wider economy, the seasons, and other extenuating factors – and you need to be prepared to go with the flow. As Kelly Gibson observes, there are times when she is ‘generally fire- fighting’, and other times when it is very quiet: ‘Employment law is never just on an even keel!’
For employment lawyers, Brexit poses some interesting questions because much of UK employment law is grounded in EU law. The current position of the UK government appears to be that not much will change post-Brexit in terms of existing EU employment laws.
The government has confirmed (for now) that workers’ existing legal rights will be guaranteed. As David Davis, Secretary of State for Exiting the European Union, wrote: ‘The great British Industrial working class voted overwhelmingly for Brexit. I am not at all attracted by the idea of rewarding them by cutting their rights.’*
The European Union (Withdrawal) Bill will convert all current EU employment law into domestic law. Also, judgments of the European Court of Justice (ECJ), which are important in interpreting EU employment laws, will be given effect in domestic law at the point of exit. It is less clear, however, whether future decisions of the ECJ would also be binding or merely persuasive.
Also, some employment rights are not in primary legislation, but in secondary legislation (such as agency worker rights and working time rights). This means that a future government could revoke these rights with secondary legislation only (that is, without an Act of parliament and, thus, without parliamentary scrutiny).
* David Davis, ‘Trade deals. Tax cuts. And taking time before triggering Article 50. A Brexit economic strategy for Britain’, ConservativeHome blog post, 11 and 14 July 2016, available at: http://tinyurl.com/yd79v9wq
1 Good work: the Taylor review of modern working practices, available at: http://tinyurl.com/y7bax3t3 An article summarising the review’s findings will appear in (2017) October CILExJ.
2 High heels and workplace dress codes: first joint report of session 2016–17, available at: http://tinyurl.com/y7p3gbcl
3 Review of the introduction of fees in the Employment Tribunals: Consultation on proposals for reform, available at: http://tinyurl.com/jyustpj. The consultation ended on 14 March 2017.