The decision to pay for legal representation in an employment tribunal case is not one to take lightly: see Getting Advice.
But if you have decided that this is what you want to do, you may be puzzled about the difference between barristers and solicitors, and doubtful about which you should instruct. The difference in what barristers and solicitors do isn’t always clear-cut, and the choice isn’t entirely straightforward.
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 ET1, or do other specific pieces of preparatory work. (This is generally a good idea: if you’re going to pay for two lawyers, you might as well have them both on the case early enough to make a real difference to things like making sure you claim everything you ought to claim, shake all the relevant documents out of the other side, etc..)
This 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: even if your solicitor doesn’t attend the hearing, so you only have to pay for one lawyer’s time at that stage, two people dividing a task between them tend to spend longer on 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.
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 the tasks being distributed, but a solicitor who drafted the claim and has had conduct of the case ever since is likely to know it very well indeed. And 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 advocates than barristers, because they do it less; 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.
Some barristers now accept instructions direct from the public for certain kinds of work, so you can also choose to instruct a barrister only. This can be quite an economical way of running your case, because barristers have lower overheads than solicitors, and that means they tend to charge lower hourly rates for their work. And they will still probably charge a brief fee for the hearing, so at the point where the case really starts to eat time, you do at least know in advance exactly what it’s going to cost you.
But you need to be aware that there are limits on what a barrister can do for you: they can’t, for instance, conduct correspondence with the tribunal and the other side, or negotiate on your behalf before the hearing.
Those are quite important limitations. If you’re going to instruct a barrister direct, you need to be confident that you can manage all the correspondence involved in running the case efficiently, and keep track of what needs to be done by when. If it’s your case, those things will be pretty stressful: think carefully about whether you really do want to take them on.
Wanting someone to handle negotiations for you early on in proceedings will often be a strong argument for using a solicitor. A barrister can advise you about what offers to make or accept, and they can draft letters for you to send out in your own name – but they can’t pick up the phone to your employer’s solicitor and use a practised combination of charm and menace to get you the best possible deal. A good solicitor can do that – and it can make a big difference.