Perhaps more than in any other area of law, employment barristers have to prove their worth.
Solicitors are happy to take on tribunal advocacy themselves, and so can choose whether or not to involve counsel in a case.
The readiness to instruct barristers varies considerably from firm to firm. Many City lawyers say they find the employment bar good value for money and regularly instruct counsel. Jane Mann, employment partner at Fox Williams, says she is a strong believer in the value of an independent bar and instructs a large amount of barristers.
“The employment bar offers a very good service. When we have a difficult problem it is enormously helpful to get a second opinion and to have the opinion of someone who approaches law from an academic viewpoint.
“We use counsel very often and benefit from their experience in court procedure, and handling and presenting evidence in court.”
But some City firms take a different approach. Richards Butler, for example, does the vast majority of tribunal advocacy itself, mostly through its in-house barrister.
Head of employment Georgina Keane, herself an ex-barrister, says: “We don't instruct barristers nearly as much as we used to. We probably have five cases appearing in tribunal in a month, and this year we have instructed counsel four times.”
And each time there was a specific reason for instructing counsel. For example, one case had criminal and health and safety overtones and another one was heard in Scotland.
Outside the City, most firms tend to keep the majority of advocacy work in-house, unless the tribunal hearing is particularly time-consuming.
John McMullen, national head of employment law at Pinsent Curtis, says: “Most of the regional law firms or new national firms, such as Pinsent Curtis, tend to do their own advocacy because that is what they have always done. Most people like doing advocacy and are good at it, and the charge rate outside of the City will stand it from a client's point of view.
“In our City office, our most senior people would not do tribunal work but we have recruited people, a couple of ex-barristers, to do it. So we tend not to use counsel except for appropriately complex cases which would be too time-consuming for us.”
Elizabeth Adams, employment partner at Beachcroft Wansbroughs, says her firm uses the employment bar less than it used to. “There's more and more demand by clients for us to do our own advocacy,” she says.
Like many other firms, Beachcrofts only uses counsel for “more cerebral issues or where we want a name behind the case”.
When they do instruct counsel, solicitors say they look for barristers who will work with them as part of a team, who relate to clients and are not pompous. They also look for a very deep knowledge of the law, including areas outside of employment law, a commercial approach to cases, consistency of opinion and an ability to manage their workload.
On the whole, employment solicitors appear happy with the service they receive from the bar. They describe employment barristers as less stuffy and more approachable than their colleagues in other areas of law.
But they say the standard does vary. One leading employment solicitor says: “At the junior junior level it is very variable. At senior junior level there are a few good people, but there are also barristers who have been around quite a lot, but who I wouldn't instruct because they are too barristerial, they are a bit god-like on occasion. Clients have to be able to relate to them.”
Some solicitors also voice concern that if junior barristers are not getting a high volume of basic advice work, they might not have the opportunity to develop into really good advocates.
Other solicitors say that the employment bar is by nature highly political and there is a lot of “posturing” involved when deciding which cases to take on. “Some sets are associated with acting for employers and some identified as acting for employees. It is a small world and there are a lot of politics in being seen to act for the right people,” one solicitor says.
Across the board, leading employment solicitors are mourning the recent loss of Patrick Elias QC and Michael Burton QC to the bench, saying their departure left “a gaping wound” at the top of the employment bar.
One leading employment lawyer says: “Patrick and Michael dominated the employment bar – there is no doubt that they were the top two silks in the field.
“The question now is, who else is there? The answer is that there are some very good silks there – the trouble is they don't immediately spring to mind, so you think there is a paucity of good silks.”
Indeed, many employment solicitors struggle to name five silks who they rate highly and one, looking at a list of recommended silks in a legal directory, says: “It does look a bit thin.”
Added to this is the fact that other senior silks are moving on. Solicitors say Eldred Tabachnik QC appears to be around less than he used to and Elizabeth Slade QC now sits in the High Court part time.
Although these moves might not be good news for solicitors, who like to instruct their old favourites where possible, it does mean that younger silks now have a real opportunity to make names for themselves at the employment bar.
Janet Gaymer, head of employment at Simmons & Simmons, says recent developments are throwing up a lot of work for the more junior silks. “There are a lot of people who took silk in the last two to three years who are now coming through very strongly,” she says.
In this climate of change, some solicitors question whether 11 King's Bench Walk can retain its reputation as the leading chambers in the employment field. One solicitor says: “Historically, the top set in terms of quality is 11 King's Bench Walk. But it lost someone truly irreplaceable in Patrick Elias. The question is, will it continue to be the leading light?”
Another says that the set, home to Elias, Tabachnik and Slade, is “going through the growing-old syndrome at the moment and that is something they have got to work on”.
But for many, 11 King's Bench Walk remains the first choice of chambers. The set still counts the highly-rated Michael Supperstone QC, Christopher Jeans QC and Alistair McGregor QC among its silks. It also has several well-regarded juniors including John Cavanagh, Nigel Giffin, Jonathan Swift, Timothy Pitt-Payne, and Daniel Stilitz. Junior junior Cecilia Ivimy is singled out by solicitors as particularly bright and up and coming.
Also vying for the top spot are Littleton Chambers, Blackstone Chambers and 4-5 Gray's Inn Square, with some solicitors rating Blackstone and 4-5 Gray's Inn Square as leaders for juniors.
Littleton Chambers is regarded as particularly strong on commercial aspects of employment law, with Andrew Clarke QC, John Bowers QC and Antony Sendall all highly regarded.
Blackstone chambers boasts two of the most sought-after juniors at the employment bar, Paul Goulding and Dinah Rose, as well as David Pannick QC and Cambridge law professor Bob Hepple QC. Monica Carss-Frisk, Pushpinder Saini, Emma Dixon and Thomas Croxford at the set are also highly recommended by employment solicitors.
4-5 Gray's Inn Square is described as “the Rolls Royce of employment law”, with Cherie Booth QC, David Bean QC and leading junior Thomas Linden.
Other leading sets include Old Square chambers, known for its trade union work, and Cloisters, which is strong on discrimination and cases which crossover with personal injury and public law. One solicitor describes the set as “very targeted” and says it will be well-placed to deal with the anticipated influx of work when the Human Rights Act comes into force next year.
Devereux Chambers is said to be excellent on tribunal work and general employment, although it was hit by the loss of David Bean QC to 4-5 Gray's Inn Square.
Solicitors also single out Essex Court Chambers, home to the highly regarded Andrew Hochhauser QC and Paul Stanley, described as “one to watch”.
Out in the regions, the story is much more mixed. One regional employment solicitor says: “We always use London counsel because they are no more expensive and there isn't anybody we would use, certainly at the Leeds or Newcastle bar.”
But some firms do use the local bar, saying that the trick is to identify which barristers are good on certain types of case.
In Birmingham, Kevin O'Donovan and Jennifer Jones at 5 Fountain Court, Jonathan Gidney at St Ive's Chambers and David Maxwell at St Philip's are all recommended by employment solicitors, as are Paul Gilroy at 9 St John Street in Manchester and Richard Seabrook at Nottingham's Ropewalk Chambers. Old Square Chambers in Bristol is also recommended.
But for complex or high-profile cases, London is still the most popular choice.
The challenge for employment lawyers everywhere, says employment partner at Lewis Silkin Michael Burd, is identifying junior juniors with potential.
“The difficulty we have is that a certain number of cases won't necessarily bear really expensive counsel. There is quite a number of extremely good juniors but they get to a point, a few years in, where they become quite expensive.
“The challenge is always to identify the really hot up-and-coming juniors.”