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Barristers' practice areas

Employment

Rachel Owusu-Agyei

Old Square Chambers

University: University of Cambridge
Degree: Law

A popular misconception is that this area of law is just about employment contracts. In fact, employment lawyers handle a variety of issues, including unfair dismissal, discrimination, redundancy, equal pay and whistleblowing claims, as well as High Court claims arising out of the employment relationship. There has been a big increase in employment law cases in recent years, due to a combination of new European legislation, government policies and employees’ increased awareness of their work-related rights.

Old Square Chambers tenant Rachel Owusu-Agyei was pretty certain from early in her undergraduate degree that she wanted to pursue the Bar, but ever keen to challenge her own perceptions, took a less straightforward route: she tried her hand at the solicitor’s side first, doing a law firm vacation scheme and subsequently working for a year as a paralegal in the employment department of a large City firm. Both experiences proved eye-opening, but ultimately confirmed her original aspirations. “They were excellent opportunities to see the practice from the other side. I  could see what needs to be done over the lifetime of a claim and everything that happens before the final stage when a barrister becomes involved. But as you progress as a solicitor, there is generally less law and more business, more dealing with clients; whereas when you develop as a barrister, you deal more with the law itself and do not have to spend as much time on client management; your work becomes more complex and, in my opinion, more interesting.”

She enjoyed her pupillage at Old Square. “Pupillage anywhere is a little strange as a concept: you spend six months trying to learn by osmosis and six months learning by doing something you’ve never done before – you’re thrown into the deep end, basically. But I’ve been fortunate in that all the practitioners with whom I worked were good at giving feedback, incredibly friendly and always prepared to answer questions. You work with lots of different people and ultimately pick up ways of working that are sustainable and successful by observing their habits and practices.”

A smorgasbord of a practice area

If variety really is the spice of life, then consider employment practice at the Bar a feast of flavour. “I do the full gambit of employment work,” says Rachel, “from discrimination claims to claims concerning deduction from wages, from unfair dismissal claims to claims concerning trade unions. One of the things that attracted me to employment law is the wide range of cases you can bring to tribunal.” It is a highly technical and fast-moving practice area – Rachel points to the constant flow of important, precedent-setting employment decisions from the Court of Appeal and the Supreme Court – which makes it crucial for successful and efficient employment counsel to keep abreast of the changes and ensure they’re always on top of the law as it stands on any given day.

The future looks… busy

As to the most prominent and pressing issues in the field, Rachel notes that “the employment tribunal system is under-resourced – evidenced by the massive backlog of cases.” While this was a problem that existed prior to the pandemic, it has only been exacerbated by covid-19 because “there was a three-month period where no in-person hearings were taking place and most final hearings were postponed. It took some time for the employment tribunal system to roll out online services so hearings could take place virtually – this is happening fairly successfully now, but the substantial backlog remains.” There is a lot of pressure on the system to get through the cases and Rachel warns that “people will lose faith in the system” if they have to continue to wait long periods for claims to be heard. “It is becoming a substantial access to justice issue,” she adds.

Rachel also highlights the significant impact that last year’s protests following the murder of George Floyd have had with many organisations forced “to look internally at their own culture and consider the extent to which they might perpetuate the various issues that were being protested about.”

Looking to the future, Rachel predicts that over the next year “people might be prepared to speak about their experiences of race discrimination and harassment in the workplace in a way that they weren’t before. The employment Bar might end up playing more of a role in conducting investigations to assist organisations where those issues are raised.”

The daily grind

Day-to-day work is, as you might expect, paperwork heavy, whether in tribunal hearings or during the extensive preparations leading up to them. Preparation, in fact, is the name of the game: “You deal with a large quantity of documents, so you’ll spend a lot of time reading and researching beforehand. You will continue to prepare until you enter the courtroom for whatever is ahead – it might be a cross-examination, it might be delivering submissions to the tribunal. Even in preliminary hearings, you still need to be very familiar with all the claims and facts, and what is likely to happen at the final hearing – what arguments are likely to come out and which facts still need to be settled.”

However, the reams of paperwork, while integral to the system, can also be a spanner in the works, not least because the digital revolution hasn’t yet fully transpired in the legal sector. The legal aid crisis has also hit hard: “A lot of people cannot afford legal advice, so when I act for a respondent, I’m often against litigants-in-person. Employment law is becoming increasingly technical, so the system is becoming even more difficult for those without representation and one of the challenges is learning to manage this.”

Regardless of the pitfalls, what keeps Rachel coming back is the human interest at the heart of every claim. She thinks back to the start of the pandemic and the government schemes introduced to support those earning less as a result of lockdown. “Many people fell through the cracks because  they’d either not been self-employed for long enough or they didn’t have enough tax evidence to access the scheme, for example.”

Working on one of the first judicial reviews to arise out of the pandemic was a highlight of Rachel’s past year at the Bar. Alongside three colleagues, she reviewed the government’s schemes and the fact that they failed to protect a lot of people who were ‘workers’. Despite the review being unsuccessful, Rachel thoroughly enjoyed “working with a union that was supporting individuals facing real financial difficulties and exposure to the virus. Martialling the arguments and supporting these people, who otherwise would not have had the advocacy to pursue those claims, was really rewarding.”

Persevere!

The two words that Rachel stresses when asked for wisdom to impart to budding barristers is ‘resilience’ and ‘perseverance’: “Be ready to do the work! Along with good academics, get some work experience to demonstrate your interest in the field and make sure you want to do this. Go to a tribunal hearing to see how it works – this shows that you are self-motivated. At the Bar you must manage your time effectively to ensure your work is done. I don’t know anyone who has had a straightforward journey to pupillage; so a lot of perseverance and resilience are required to get to pupillage stage and then to have a successful career at the Bar.”

As a closing statement, Rachel encourages future lawyers to not be put off by any preconceptions. “If you find a chambers that you like, but it has lots of people who look and sound the same, there’s no reason why you couldn’t excel there too. Don’t hold back,” she urges.