Employment

Employment

Kathleen Donnelly

Henderson Chambers

University: University of Oxford
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.


As “one of those annoying people who always wanted to be a barrister”, Kathleen Donnelly felt little of the career angst that typically accompanies the departure of full-time education for the wider world of work. “I was attracted by the independence and advocacy – the two essentials which define the barrister’s role – and the decision was always pretty clear for me,” she explains. After her law degree, Kathleen also spent a year working as a research assistant at the Law Commission, and then studied for a master’s degree in law, to get herself into a strong position to obtain pupillage.

After a year of pupillage at another set where she found she was not a particularly good fit, Kathleen completed a ‘third six’ at Henderson Chambers, where she really found her feet and went on to gain tenancy. “We have a wide range of practice areas at Henderson and junior barristers are encouraged to gain exposure to different kinds of work before gravitating towards the areas that really interest them,” she explains. “These also tend to be the areas that a barrister is particularly good at and where they make more effort to build opportunities by attending talks and networking events.”

Employment law was one of the areas that got Kathleen hooked as a junior. “I began doing employment work as part of my broader junior practice,” she says, “but it really suited me and now around 50% of my practice is comprised of employment work, with the rest made up of significant civil and commercial litigation work.”

In her employment practice, Kathleen acts for both companies and individuals at employment tribunals and in the High Court: “The most straightforward type of employment claim is unfair dismissal, and these are the types of cases a junior barrister will usually start with. However, my practice now tends to be a mix of whistleblowing, discrimination and employee competition claims.” Indeed, Kathleen believes that the introduction of the two-year service requirement for unfair dismissal claims has caused some cases to be presented in more complex ways, as discrimination or whistleblowing cases, which do not have this service requirement. Kathleen finds that her employee competition cases are some of the most interesting and exciting, and these are fought in the High Court: “For example, a case may concern a departing employee who is alleged to have set up a competing business while still employed by his former employer, or he may be alleged to have poached clients for a new business.”

Employment is an ideal area for those who love advocacy because outcomes so often rest on cross-examination. “It is almost never simply a dispute over, for example, the interpretation of a contract – in employment cases there is usually a fundamental dispute about the facts, as well as legal argument about what the law is and how it applies to the facts as may be found by the tribunal,” Kathleen explains. “Most cases have interesting underlying facts and in order to present the case well, you really have to get to grips with someone else’s workplace and experiences.” There is a real sense of obligation to do one’s best for the client in matters which can be very serious indeed for all those concerned, for example, when there are allegations of sexual harassment. As a barrister, there is a good deal of job satisfaction both for this reason, and also the need to be familiar and able to work with a complex area of law: “I also have to keep myself up to date at all times – much employment law derives from Europe and can change very quickly.”

“It is almost never simply a dispute over, for example, the interpretation of a contract – in employment cases there is usually a fundamental dispute about the facts, as well as legal argument about what the law is and how it applies to the facts as may be found by the tribunal”

If there is a downside to the role, it is its unpredictability. “Cases tend not to be spread evenly throughout the year, so there are times where I have far too much to do, but barristers tend to prefer to be overworked than too quiet” says Kathleen. “This is a feature of working with cases which may fight or settle, and also because instructions may come from multiple solicitor clients, so there is no equivalent to a manager overseeing the amount of work to do – that is matter for the individual barrister together with her clerks.”

The introduction of employment fees pushed through by the Ministry of Justice as part of the government’s cost-cutting austerity programme is posing a problem for employment barristers starting out in this field. “I believe that the introduction of employment tribunal fees has restricted access to justice, while I also think that it has negatively impacted on junior barristers starting out in this area because there are fewer straightforward, one-day unfair dismissal cases going before tribunals,” Kathleen explains. “This is fine for the established barristers taking on the lengthier discrimination and whistleblowing cases, but the fees have made it harder for junior barristers to get a foothold in this area. The statistics are clear: unless you assume that all the cases that are now not being brought before tribunals were spurious, there are undoubtedly meritorious cases that are now not being heard.”

A hot topic on everyone’s minds, not least employment barristers’, is Brexit. However, Kathleen remains open minded. “There will be a period of some uncertainty, but we will have to make further UK employment legislation or use common law to fill the gaps,” she argues. “Also, many of the laws that derive from Europe have had very positive effects for individuals and I think that it would be very hard to take some of those protections away. However, there will be a period of uncertainty, which for lawyers usually means challenge and opportunity.”

The proportionality of legal costs is more of an issue in employment tribunal claims than in other civil litigation, because the usual rule of costs following the event does not apply. “In employment cases, normally the successful party does not recover their fees from the other side, so even if someone has a very good claim, it is very important to manage the cost of winning it,” explains Kathleen. Some clients instruct barristers on a direct access basis as a way of managing their legal costs, as this can be a way to keep legal costs down. However, there are pros and cons for the barrister in departing from the usual solicitor-client relationship, and “barristers in employment, as in other areas, need to consider the extent to which they want to practise on a direct access basis.”

Forging a career at the Bar is as tough as it has ever been, but Kathleen has some valuable advice for those steeled for the challenge: “To be a barrister, you need resilience because it is almost certainly not going to be an easy route, but remember that lots of barristers who are now enjoying successful careers did not have a straightforward start to their career, so don’t give up at the first hurdle. It is also important to know that in this career you need management skills because you are in effect running your own business – you need to manage your own finances and the development of your own practice; it is not enough just to be a good lawyer. If it suits your character, then there are undoubtedly a great many benefits to life as a barrister, and at the employment Bar. There is a great sense of satisfaction of doing a job well, and you will meet many very interesting clients who will rely on you to give them the right advice and represent them to the best of your ability. I personally also value the real sense of self determination about the way I carry out my work and the direction in which I choose to take my practice. If you are driven to succeed at the Bar and enjoy the challenge of interesting advocacy, then I encourage you to try to establish a practice which includes employment law.”