There has been much in the press recently about the rising costs of employment tribunal claims.[1] Litigation is expensive and time-consuming, and a careful choice of whether and how to use external lawyers can make a big difference to the financial costs.
DIY
Don’t rule this out. Some tribunal cases are long and complex and involve serious risks (financial and other), and in those cases you will want to instruct someone who is experienced in employment tribunal litigation. But often the financial risks are modest compared to the cost of instructing lawyers, and the factual and legal issues are straightforward. In those cases, you may be better off cutting your external legal costs to nil by doing the work in house.
The traditional route – barrister and solicitor
The traditional route is to instruct a solicitor first, and then to decide in consultation with your solicitor whether (and if so, when) you need to instruct a barrister as well. Often solicitors handle the early stages of the claim, look after the correspondence and negotiations, draft the statements, compile the bundle and so on; and then instruct a barrister to represent you at the hearing. Sometimes a barrister is instructed earlier, and will be asked to advise on the merits of the claim, or draft the ET3, or do other specific pieces of preparatory work.[2]
Having two lawyers can work well. Two heads often are better than one, and it is good to have a team to divide up the many tasks involved in a hearing. It’s easier to focus on preparing to cross-examine witnesses, for example, if you don’t have to worry about responding to the other side’s last-minute application to postpone the case, or contacting your witnesses and making sure they all know when and where they are needed. It is expensive, though: two people dividing a task between them tend to spend longer in total – e.g. by reading and commenting on each other’s draft documents, or updating each other about developments – than one person doing it alone would.
Solicitor only
Some solicitors will be happy to represent you in the tribunal as well as doing all the preparatory work. This can work well, too. You lose the benefit of having the tasks handled by a team, but you save money by having one lawyer representing you instead of two. The main disadvantages are that on average solicitors tend to be less practised as advocates than barristers; and that the hearing itself can work out quite expensive this way. That’s because as a rule barristers charge a fixed fee (known as a ‘brief fee’) for hearings, whereas solicitors generally continue charging by the hour – and hearings consume time at a frightening rate.
Instructing a barrister direct
This is an option that has only been available for a few years, and of which many employers may still be unaware. It used only to be possible to instruct a barrister through a solicitor. But now some barristers will accept instructions direct from clients. This too has advantages and disadvantages.
The disadvantages
- Availability: If your barrister is in court, they are entirely unavailable to anyone else. Solicitors have colleagues and trainees to help you when they are busy; we don't. That said, we want to build long-term relationships with our clients, and today's technology means we can usually pick up and respond to messages within the same working day.
- Handling money: Barristers are not allowed to handle money for you or instruct experts directly, but we can tell you how to do it. It doesn't sound that important, and it's not - but it is something you need to know.
- Correspondence: Barristers aren’t allowed to ‘go on the record’ - that is, tell the other side and the tribunal that all correspondence should come to them instead of you. This means that you will have to do quite a lot of letter-writing that a solicitor would be able to do for you. (But we are allowed to draft letters for you to send, if you want us to, or advise you on the content of your letters.)
The advantages
- You have direct access to someone who has day-in, day-out experience of appearing in employment tribunals: barristers have first-hand knowledge of what kinds of evidence a tribunal is likely to find convincing and what arguments will persuade them.
- Pragmatism: Conducting hearings means that barristers tend to ‘pick their battles’ carefully - focusing on what really matters, and ignoring what doesn’t.
- Cost: You are only paying for one lawyer, and you’re not paying lawyers to undertake administrative work or correspondence that you could more cheaply keep in-house. In addition, barristers’ low overheads tend to mean that a barrister’s hourly rate is low compared to the hourly rate charged by a solicitor of equivalent experience.
In general, if you want the whole conduct of the case taken out of your hands, you will need a solicitor. But if you’re happy to deal yourself with the routine correspondence and administration your case will generate, then instructing a barrister direct is likely to prove excellent value for you.
[1] ‘Reforms set out for employment tribunals’, The Independent, 27 January 2011
[2] See also Michelle Gray’s article ‘Going legal’, The People Bulletin, 21 January 2010.