Blogs

Ffyon Reilly blogpost 6 November 2023

As we are all celebrating 50 momentous years of FRU, their pro bono work, and the importance of and impact on equal access to justice that FRU provides, I was asked to write a blog post as part of the celebration. The case I have chosen to blog about is a public interest disclosure matter (whistleblowing) and this case, in my view, effectively highlights the fact the FRU clients, without the support and dedication of the Free Representation Unit, may struggle to present their case before an Employment Tribunal.

I am a legal academic at the employed bar and my employer, City University, has had a long and fruitful relationship with FRU, where they support barristers to be, as they undertake FRU cases under supervision of the expert and hard-working FRU legal officers. I am privileged to have run invaluable clinical legal education for our Bar students on the BVS LLM and to manage the relationship between FRU and City Law School. We are very lucky to have this relationship and we rightly cherish it.

I have undertaken Pro Bono work throughout my career both in self-employed practice at the bar and as latterly as an employed barrister. I was an FRU volunteer myself at bar school and I was well aware of the benefit of being a FRU volunteer both to the client, and to the volunteer themselves.  One cannot promote the value of pro bono work without offering one’s own time and I have been a (return) FRU volunteer for five years now. This matter stands out to me because of the vulnerability of the client and the mountain that she had to climb for success. Even if success was simply holding her employer to account.

Starting at the beginning of the FRU’s involvement, the claimant came to FRU as she (understandably) was struggling to comply with the orders of the tribunal and to manage a very robust respondent representative. She urgently sought legal representation.  Protect, the whistleblowing charity, highlight the challenges found by whistleblowers and has foreshadowed the issues found by the claimant,

“The problem of accessing justice when you’ve lost your job, have no lawyer, and are facing a strong-armed employer, is sadly all too familiar to us at Protect.  Going to Tribunal can be costly and stressful, as legal aid is not currently available for whistleblowers.  Justice delayed is also justice denied – the wait for months or years for a hearing increases the stress and disadvantage whistleblowers face, and for many robs them of the chance of any realistic resolution.”

Statistically, just 12% of whistleblowers, whose cases go to preliminary hearing at employment tribunals in England and Wales, are successful. Female claimants are even less likely to be represented at hearing or to succeed. The claimant had filed a whistleblowing claim against a   Care Partnership employer on January 20, 2019, she received final judgement over three years later, in March 2023.

When I became the FRU representative, in late 2019, I made an application to amend the particulars of claim and to add another respondent a natural person (the director). These were opposed but were ultimately successful. He became the second respondent.

The claimant was employed by an agency and was placed to work at the Care Partnership employer. She worked shifts and was paid the minimum wage. The employer ran unregulated accommodation (https://www.childrenscommissioner.gov.uk/resource/unregulated ) for older teens in the care system. Her employment contract purported to be a zero-hour contract. Throughout her employment, the claimant raised several serious concerns regarding the care practices and safety measures; this included reports of weapons in the home, and a lack of security measures. She raised further concerns regarding improper administration of medication, lack of training and staff support.

The claimant continued to repeatedly point out safety issues and mismanagement, especially regarding how critical situations were handled and the communication (or lack thereof) from the management, primarily involving the director.  She was then subject to a brutal assault at work by one of the clients who, unknown to the claimant, had had previous convictions for assaulting care workers. Following further protected disclosures, she faced a series of detriments. She alleged that she was subject to various detriments including, unfair treatment, hostility, and ultimately found herself removed from all work rotas, resulting in financial and emotional distress.

Following this, she was subject to an investigation into her competence that was masked as an investigation into the assault. The claimant claimed to have suffered stress, anxiety, and depression due to the treatment received and that she had had to undergo counselling as a result and was unable to work.

At the preliminary hearings and at the tribunal hearing itself, legal argument also focused on the complex relationship between the two companies, the directors’ role, and the claimant's contract of employment. The tribunal held that there was sufficient mutual obligation and control to constitute an employee-employer relationship. Regarding the claim against the second respondent, the tribunal held that as a director of both companies and positioned at the top of the managerial hierarchy, the tribunal held that was an authorised agent of the employer, and as such, the claims against him could proceed. The tribunal emphasised that employers could be vicariously liable for the actions of their employees or authorised agents.

The tribunal found that jurisdiction was established to hear the claims against both the company and the director and that the claimant was an employee of the agency. In their judgement they found that the information disclosed by the claimant pointed towards potential criminal offences, breaches of legal obligations, and threats to health and safety. It was held that these matters were indeed of public interest, given the vulnerability of the young people involved and the potential implications for staff members. In the liability hearing the tribunal held that all eleven of the detriments in the claimants’ amended particulars of claim were made out. The judgement stated that the tribunal did not accept the evidence of the director and that it had there were general concerns about his credibility.

No settlement was agreed after the liability hearing and the claimant was forced to give further evidence in the remedy hearing.  After the hearing the claimant wrote to FRU and stated

“I can’t recall a time in my life when I’ve EVER received or felt support to this level. To have FRU fighting my corner has been better than a dream come true. The result and whatever happens next is honestly, secondary to that. Thank you from the bottom of my heart.”

The remedy hearing did not assist the defendants. The tribunal noted in their remedy judgment that they found the claimants evidence poignant quoting the claimants witness statement several times in their judgment,

“I’m incredulous, how he (the director) conducted himself, how he treated me, how he has isolated me, I would never have expected that such an event could have happened…. I was expelled from work, and he would not even have a conversation with me about it. That is what has made me continue with this. How could you treat a human being like this? One who was such a good worker. I’m incredulous and I don’t understand it at all, and that is why it has affected my life, my relationships and feeling about myself. I was living hand to mouth. A terrible and traumatic ordeal made all the worse by the directors’ behaviour. This knocked my confidence, I’m not fully myself but on the road to living the life I should be living.”

The matter took over three long years for the claimant, but on the 13th of March 2023, the claimant was awarded unanimously by the tribunal the sum of £9,677.28 net in respect of loss of earnings and the sum of £18,000 in respect of injury to feelings payable by the Respondents. The Claimant has said that without the support of the Free Representation Unit, she would not have had the strength to continue with the matter. 

Personally, I am grateful for the moral support, strategic advice, the comradeship of the legal officers and the fantastic office space that FRU offers. The learning curve as a volunteer keeps me fresh and stimulated.

We all must pay thanks to the Free Representation Unit and support them this year and going forwards. Lets all join them for a wonderful evening at 39 Essex Street Virtual Ticket - FRU's 50th Celebration Tickets, Wed 8 Nov 2023 at 18:00 | Eventbrite and for anyone who can’t attend but would like to make a donation please go to https://www.thefru.org.uk/donate

Ffyon Reilly Senior Lecturer, City Law School

Charlie Ryan blogpost 1 August 2023

My name is Charlie Ryan.  I’m currently a General Counsel and Strategy Consultant at a boutique aviation and defence consultancy company.  Previously I was Head of Commercial at Royal Mail and Lead Legal Counsel at Parcelforce, and before that I worked at three different City law firms, mainly in project finance and projects practice areas.   I am +15 years PQE. 

In February to April of 2023, I had the privilege to volunteer at the Free Representation Unit (FRU) where I represented a claimant in relation to their unfair dismissal and wrongful dismissal claim against a major UK employer.  This was the first time I practised in and advised on employment law.

I had first heard of FRU back in law school in 2005 – quite a while ago!  I had always thought that the idea of volunteering as an advocate with FRU sounded fun, very valuable from a legal training perspective and, most importantly, very worthwhile.  However, a combination of the fact that at the time I was focusing on securing a training contract to be a solicitor (whereas FRU was viewed as something more appropriate for students aiming for a pupillage) and the fact that I was afflicted with a (healthy) dose of the ‘student-procrastination condition’ (very common back then!), meant that this remained an unfulfilled ambition. 

Moving forward in time to this year, there were various reasons as to why I chose to apply to be a FRU volunteer.  Firstly, I had always wanted to apply my legal skills in a pro-bono context where I could be strongly committed and invested in a particular cause / case / person.  During my training-contract I volunteered at walk-in pro-bono clinics, and whilst I really enjoyed those experiences, for me the fact that volunteer solicitors rarely assisted a client beyond one or two interactions meant that I felt that I did not have the opportunity to truly commit to or invest in a client and their particular issue – in contrast to volunteering at the FRU.  Secondly, I wanted to learn a new area of law and an area of law which is more relevant to people (vs. corporates / corporate law – being my ‘normal’ area of practice).  There comes a point in many legal careers where the learning curve can (and often does) plateau, where one knows instinctively the broad answer to most legal issues which land on your desk / in your in-box.  Whilst this ability, derived as a consequence of years of experience, makes one a valuable lawyer, it means that one’s exposure to learning new skills and new areas of law is diminished.  Thirdly, linked to the previous point, I thought that this would be an extremely valuable legal training experience. 

I was assigned my first FRU employment case in February 2022.  The client had a claim of unfair dismissal against a major UK employer.  Whilst of course I cannot disclose details of the case, I can say that upon reading the basic facts, I immediately had a lot of sympathy for the client, and on an inter-personal level I wanted to achieve the very best for the client in terms of the legal outcome.  As such I was immediately pleased to have taken this case on.  At the same time I was under no illusion that I was about to experience a near-vertical learning curve within a compressed timeline: the hearing at the Employment Tribunal was listed as the start of April – there was no time to lose!

There were some quite exciting points during the case, at one point we amended the client’s claim to add a new claim: a wrongful dismissal claim (which was applied for quite late in the overall process).  At another juncture we considered adding a discrimination claim.  All of this was within a compressed timeline.  A further aspect to the process which I found very interesting was the requirement to consider ‘litigation tactics’ in the context us representing a claimant who was an individual against a respondent who was a huge corporate.   Eventually, with only a week to spare before the scheduled hearing date, we assisted our client to reach a settlement with the respondent.  The settlement amount which our client received was significantly higher than what had been offered prior to FRU being instructed by the client, and of course this was very pleasing to the client and to all of us at the FRU.

From a legal skills development basis, the experience exceeded my expectations in terms of the number, range and depths of skills which I applied and as a consequence improved upon.  Fortunately, throughout this process I had brilliant support from FRU’s legal officers who of course have a wealth of experience and were super fun to work with.

I learnt two completely new areas of employment law (from a starting point of zero previous experience): unfair dismissal and wrongful dismissal.  I achieved this by reading statute, case law and Halsbury’s Laws.  This granular focus on black letter law is something which, as a solicitor with +15 years PQE, I had not done for many years.  

As I expected, this experience also developed my client engagement abilities.  This was the first time I’d had a client who was an individual (vs. a corporate client).  Of course from the client’s perspective there was a very strong emotional dimension to the legal case, and this meant that I had to learn how to communicate to the (individual) client in a way which was materially different to communicating to a corporate client.

I also learnt how to navigate and communicate with the Employment Tribunal i.e. a court.  This was also a totally new area to me as I had not previously practised in litigation.  This required me to learn how to present written legal arguments in a ‘barrister style’ of language vs. corporate lawyer language – these language styles are quite different.  Again, this experience has added to my overall skills as a lawyer.

So in conclusion, my first experience with FRU meant that I re-trained certain core legal skills, I learnt totally new areas of law, I improved my client engagement skills and I expanded my communication abilities.  I emerged as a more able lawyer.  Apart from anything else, this experience has been the best legal training I’ve had since law school, by some distance.

Finally, on a more personal level, a nice outcome to this all was that the client made a donation to the FRU fund-raising page and mentioned her gratitude to the FRU and to me personally.  This was more satisfying to me than almost any other praise I’ve received during my legal career.

I really recommend volunteering at the FRU, and I am already looking forward to my next case and working with FRU colleagues again!

Charlie Coverman blogpost 15 June 2023

I took on my first FRU Employment case in July last year. From an initial reading of the ET1 and ET3, the Claimant’s prospects did not look good. All the ingredients for a ‘fair’ dismissal were seemingly there: the Claimant had been summarily dismissed for misconduct; a thorough investigation had taken place; and the Claimant’s conduct was an example of gross misconduct in their terms of employment.

After meeting with my client and going through all the 400 pages of evidence we had been sent by the Respondent, however, I began to form a different picture of this case. My client, who had been a long-term employee, said they were not told about the change of policy that lead to his dismissal. On further review, various stages of the investigation and disciplinary process had not been carried out according to the Respondent’s own procedural guidelines. In addition, several other charges had been initially levelled against my client, only for them to be omitted in the reasons for dismissal letter. Additionally, compelling points of mitigation were simply not considered.

Given the above, I was disappointed when the Respondent’s solicitor offered my client a meagre ‘one-time only’ settlement offer. I advised my client that they should only settle for an amount that adequately reflected the significant merits of their claim. As such we continued to prepare for the hearing. I made this clear to the Respondent, who seemed surprised at our position.

As the date of the hearing grew closer, and the Respondent’s witness statements were not forthcoming, we sensed an opportunity to settle for a fair amount. Eventually, we reached an agreement, much higher than the Respondent’s initial offer and much more reflective of the value of the case, two days before the hearing was scheduled.

I am incredibly grateful for constant support I received from the FRU Legal Officers. They were always on hand to proofread case documents, offer strategic advice, and for moral support. I look forward to taking on my next case!

Helen Moizer blogpost 23 September 2022

I remember hearing about the Free Representation Unit (“FRU”) whilst I was studying for my Graduate Diploma in Law. There was a buzz about the charity and I heard how students were running their own cases and working directly with clients. Wanting to get involved with this, I attended FRU’s training and put myself forward to volunteer for social security cases whilst studying for my Bar Course. I began writing submissions, preparing for tribunal appeal hearings and representing real-life clients, giving me on the ground experience, with a lot of responsibility.

After finishing my studies, I worked for a similar charity helping vulnerable clients, supervising volunteers and managing pro bono cases. This gave me a great foundation to then apply for the Assistant Legal Officer role at FRU full-time. I hoped this role would help me progress professionally, but it also meant I could devote my time to practically assisting on cases.

As FRU is made up of small team, I was thrown straight into the legal officer role on day one. I quickly began to help the student volunteers, whose position I was once in, with their own cases. This involved addressing client handling matters to answering ethical questions to providing feedback on their legal submissions. Being a supervisor meant I was able to see an overview of all the cases that were coming in and out of the charity. I saw first-hand the difference that these legal volunteers were making, whether that was by providing access to justice to clients, helping appellants receive life-changing disability benefits or winning compensation for unfair dismissals by an employer.

Managing my own cases and clients was a highlight of the legal officer role at FRU. By undertaking research for my own cases, as well as helping the volunteers, my legal knowledge and skills were broadening at a fast rate. As a student, when I had first heard about FRU, I did not think I would then be advising and assisting on complex matters. For example, one client had brought an indirect sex discrimination case, but I realised she also needed to amend her claim to include pregnancy discrimination, as it seemed that she had been dismissed whilst on maternity leave. I also did not think I would be examining pension loss of a defined benefit scheme, where the respondent in the case was a well-known governmental department. My involvement helped clients achieve an outcome, whether that was advising them on their legal options, helping to settle the case or winning in the employment and first-tier tribunals. This experience was humbling and rewarding as each client that comes to FRU could not have otherwise obtained legal support.

The role was not without its challenges, in a busy environment I had to quickly learn how to manage my time between supervising volunteers, assisting the team and meeting my own court deadlines. There was always a new and thrilling problem to solve, whether that be an uncontactable client with a hearing in week, an urgent direction from the judge or a quick paced settlement offer to advise a client on. This hands-on experience was the best way to learn, and I was guided and supported by brilliant colleagues and excellent principle legal officers in employment and social security law.

On reflection, working for FRU greatly assisted in my journey to obtaining pupillage (the training place to become a barrister). I had been applying for four years, getting very close to an offer but never quite achieving it. Then after eight months at FRU, I was lucky enough to receive an offer of pupillage in May 2022, due to start in October of the same year. I think every small element of my experience at FRU contributed to achieving pupillage, whether that be explaining that I would have to reschedule my interview as I was representing a client in tribunal that day or having the confidence and ability to cross examine an interviewer for one of the advocacy tests. In turn, the legal officer role has set me up well for my pupillage year and I will be taking the legal knowledge, problem-solving skills, time management and teamwork abilities with me.

Scott Miller blogpost 1 September 2022

I have spent the last six months of my training contract at the Free Representation Unit (FRU), on secondment from Linklaters. I was attracted to the FRU secondment as I had really enjoyed doing pro bono work in my other seats and I was keen to have exposure to employment law. The FRU secondment therefore suited me perfectly!

Working at FRU has offered a unique perspective to my training contract: not only have I worked on pro bono matters and dealt directly with clients on a daily basis, but I have been able to get experience that is not often found in commercial law firms: most of my days are spent doing what the media portrays as the work of a stereotypical ‘lawyer’. I have my own client base that I am responsible for, and a lot of the work revolves around advocacy and hearing preparation, which has allowed me to put the skills I learnt during my training contract to use in a different context.

Going into the secondment, I was looking to take more ownership of the work I did, and this was certainly fulfilled at FRU. As a charity with limited resources, FRU has a lean structure, with just a handful of other legal officers to supervise all the cases that come in. This meant that I was given full responsibility for managing both my own caseload and supervising volunteers’ work very soon after I started. Whilst the learning curve was steep, the team were great at making sure I felt supported at every step of the way. Getting such direct hands-on experience was invaluable, and I feel that this in particular has put me on the front foot as I start my role as an associate.

I was also very impressed by the enthusiasm and ability of the volunteers I supervised. FRU volunteers are typically students completing their legal training or looking for pupillage, and it was great to see the commitment each volunteer had to their case, spending hours to prepare and represent clients (who would otherwise not have access to legal representation) in the employment tribunal. Thanks to the help of these volunteers, FRU manages to make a big difference despite its lean structure: last quarter, FRU staff and volunteers spent 16 days  in the Employment Tribunal (including 2 days in Judicial Mediation and 2 days in the Employment Appeal Tribunal); received Employment Tribunal awards of £190,000 and negotiated settlements worth £89,000 on behalf of its clients.

Whilst 6 months didn’t at first appear like a lot of time to get stuck into an organisation such as FRU (especially without any prior employment law experience!), I have been pleasantly surprised by the amount I’ve been able to do. Along with supporting the volunteers I’ve supervised (a skill in itself of reviewing and providing meaningful feedback), I have also learnt so much by taking on my own cases: from communicating legal issues to clients in a digestible way and improving my negotiation skills in settlement talks, to keeping multiple plates spinning and improving my oral advocacy representing clients in tribunal.

I have found that settlement negotiations hugely hinge on what each party wants from the process, as the scope for creative solutions is much broader than what a tribunal could award. For instance, one client cared less about the money they would get than the standard confidentiality clause contained in the settlement agreement: they lived and worked in a small community and were worried that they would be penalised if word got out in the town’s gossip mill. We were able to work through this at the last minute by drafting an agreed statement clause that set out the parameters of what both sides could say without breaching the agreement. This was a great opportunity to think slightly outside of the box to meet a client’s needs as well as providing great quality drafting experience.

Being responsible for cases directly has also honed my project management skills: whilst I worked on large multijurisdictional disputes during my training contract, my time at FRU took this to a new level in terms of personal responsibility. The pinnacle of this has been co-representing a group of 15(!) claimants in a group litigation claim against three different respondents – as you may imagine, there are lots of logistical hurdles involved here on top of the legal ones! In cases as complicated as this, the tribunal is often minded to encourage alternative forms of resolution and, in this case, the judge arranged for a judicial mediation. Myself and my colleague therefore represented the claimants in front of a judge whose goal was to encourage settlement. Whilst I can’t say too much as the case is ongoing, this provided a great opportunity to see how the judicial process can work outside of the standard tribunal procedure and the ways in which a mediator facilitates negotiations.

I have also had to deal with cases that did not go as smoothly as I thought they might. For instance, the employment tribunal published guidance two weeks before one of my hearings stating that, where a witness wanted to give evidence from abroad, permission had to be granted from that country’s government. My client was living in New Zealand at the time and so this proved to be a bit of a problem! We ended up applying for the hearing to be postponed to allow for the permission to be sought, and the client ultimately ended up returning to the UK, but it was certainly a curve ball that took me by surprise when it happened.

On another occasion, I had to step in at the last minute to represent a client at a costs hearing as the volunteer became unavailable. Costs aren’t too often awarded in the employment tribunal, and so it was a good opportunity for me to see both how the judge approaches such a situation as well as to get some proper tribunal advocacy experience. Some additional evidence was required from my client at the hearing and so they had to take the oath, which I hadn’t experienced first-hand before.

As I look back on my time at FRU, I am very grateful to have worked with so many talented individuals to support claimants in what is often one of the most difficult periods of their lives.

Scott was a trainee in his final seat at Linklaters and Qualified in September 2022

FRU is celebrating it’s 50th anniversary this year.  If you would like to donate to the continued work of FRU, we would be very grateful wwww.thefru.org.uk/donate