When to Escalate a Legal Issue to a Barristers: An HR Consultant's Guide

For HR consultants, understanding employment law issues is not just challenging — it is integral to the role. And whilst an HR professional will no doubt be adept at managing routine tasks, there are moments when involving an employment law barrister becomes indispensable to the organisation in question.  

So, when should HR advise instructing an employment law barrister? 

Complex Employment Disputes 

One of the primary reasons to escalate to an employment barrister is when faced with complex employment disputes or claims from an employee.  

These could include discrimination matters, whistleblowing, or unfair dismissal claims. When issues are highly contentious and involve significant financial or reputational consequences, a barrister's specialised knowledge and experience in court proceedings can be invaluable. 

Tribunal Hearings 

If a case is headed towards an employment tribunal, it is prudent to engage a barrister early. Employment barristers have extensive tribunal experience and can provide strategic advice on how best to present the case, as well as being able to represent clients in court.  

Their expertise in cross-examination and familiarity with tribunal procedures can significantly enhance the chances of a favourable outcome for your client. 

Appeals and Judicial Review 

When a case involves appealing a tribunal decision or seeking judicial review, a barrister's involvement offers a detailed knowledge of legal grounds for appeal and procedural nuances. 

Appeals often involve challenging tribunal decisions on complex legal grounds, requiring a thorough understanding of the specific points of law that were allegedly misapplied or overlooked. Judicial reviews require an acute awareness of administrative law principles and the nuances of challenging public authority decisions, where barristers' expertise again proves invaluable. 

Complex Contractual Issues

Employment contracts can sometimes present intricate legal challenges, particularly those involving restrictive covenants, confidentiality agreements, or executive compensation.  

When these issues arise – whether prompted by employer or employee – barristers can offer expert interpretation and representation if disputes reach litigation. 

Collective Bargaining and Industrial Action 

In situations involving collective bargaining or potential industrial action, an employment barrister can offer strategic guidance and represent employers in negotiations or disputes with trade unions. Their ability to advise on labour law intricacies can help mitigate risks and protect your client's interests. 

When Not to Instruct a Barrister 

While there are many instances where a barrister's involvement is beneficial, there are situations where it may not be necessary: 

• Early-Stage Disputes: Attempt to resolve minor disputes through internal mediation or negotiation before considering legal escalation. Often, employers can handle these matters effectively without needing a barrister. 

• Grievance Handling: Initial stages of employee grievances, where the issue can be addressed through internal procedures or mediation, often do not require the expertise of a barrister. 

• Policy Implementation: Routine updates or the implementation of standard employment policies do not usually necessitate a barrister's insight unless the policies intersect with complex legal changes, such as anti-discrimination laws, data protection regulations, and occupational health and safety standards. 

• Non-Contentious Redundancies: Conducting straightforward redundancy processes where there is clear evidence of fairness and proper procedure will not require barrister involvement. 

• Basic Employment Queries: Answering straightforward employment law questions or clarifications can often be efficiently addressed by HR consultants or qualified solicitors familiar with the law. 

Why recommend a direct access barrister? 

Direct access barristers provide specialised legal advice and representation without the need for intermediary solicitors, creating a streamlined process that can be more cost-effective and time efficient.  

For clients dealing with complex legal issues, such as employment disputes, discrimination cases, or intricate contractual matters, direct communication with a barrister can ensure closer involvement and better understanding of the matter at hand.  

Find out more about direct access here, or view Barrister Connect’s direct access employment barristers here.