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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 very good at giving feedback, incredibly friendly and always prepared to answer any questions. You work with lots of different people and ultimately pick up ways of working that are sustainable and successful by observing their own 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 “employment status is probably the biggest one on the horizon and has been for the past few years. Cases are consistently going to the Supreme Court for determinations on whether workers are employees, workers or some other status. I think that once we get out of the Brexit tornado, there will be more consideration of this on the political side, and how we might want to tie employment status to other things. A lot of the relevance of employment status relates to the tax consequences that flow from it. So there might be more consideration of whether employers could be incentivised through the tax system – or less penalised – to give people more rights. It’s an interesting issue to navigate, because claimants naturally want access to more rights, but when seen from a wider societal perspective, there are more factors at play. That’s why there can be a significant divergence in decisions; when facing employment status questions, tribunals are often looking at how they affect the parties in front of them, rather than society at large.”

I really saw the power of advocacy – to have someone represent you, acting on your behalf and explaining the situation to a judge, and to have a determination made when you know you’ve been treated unfairly but no one else has agreed with you.

Another topic certain to create work for future employment barristers is the protected characteristics under the Equality Act in the employment context: “How rights can sit simultaneously is something that crops up more and more in the tribunals – that is, competing rights that are pursued simultaneously and how they interact. A big question in the employment field is how employers deal with that, and the degree of latitude they have to make a decision that favours one group over another.”

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.”

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. “It can be frustrating, how inefficient the court system in this country sometimes is – especially with employment work, which is still very much on paper,” explains Rachel. “Not having a printed copy of a certain  document can really derail things.” The legal aid crisis has also hit hard: “As a result of our current system, 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 warmly recalls her first unfair dismissal claim: “I was acting for the claimant, and I really saw the power of advocacy at that stage – to have someone represent you, acting on your behalf and explaining the situation to a judge, and to have a determination made when you know you’ve been treated unfairly but no one else has agreed with you. The claimant was emotional because of the long struggle that he’d had to get the determination; it was powerful.”

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 in some work experience to demonstrate your interest in the field and to make sure you want to do this – and get along to a tribunal hearing to see how it works. This also shows that you are self-motivated; at the Bar you have to manage your time effectively to make sure 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.” If you’re genuinely interested in the law and people though, Rachel describes it as “the perfect job – you engage with people and their stories and see them through what is a fascinating system.”