Students used by law firm for agency advocacy are ‘workers’

Tribunal: Bar student was worker

A Bar student who handled agency advocacy work through a law firm was a worker with certain rights and not self-employed, an employment tribunal has ruled.

Judge John Crosfill in East London contradicted a 2014 decision by another tribunal that an LPC Law advocate was self-employed.

LPC Law, an SRA-regulated firm based in south London, directly employs seven people, including two solicitors, but also uses around 260 people around the country to handle advocacy on behalf of client law firms.

Some are qualified solicitors and barristers but the majority are students who have passed the legal practice course or Bar professional training course.

The Legal Services Act 2007 permits unqualified people like them to handle advocacy where they are operating under the instruction and supervision of a qualified lawyer and the proceedings are being heard in chambers.

Judge Crosfil found that, “to its credit”, LPC Law supervised its advocates “to the extent required by law, if not more”. It was not required to give advocates work and they were not obliged to accept it; they were also able to make themselves unavailable for work.

Ms N Agada was a Bar student who had worked for two law firms before signing up to LPC Law in 2018 for what turned out to be nine months.

She claims she was subjected to a detriment because she made protected disclosures, was discriminated against because of pregnancy or maternity leave, and was not allowed to take paid annual leave.

The issue of whether her employment status permitted her to bring the claims was dealt with at a preliminary hearing.

Judge Crosfil found that the three requirements for worker status, as laid out earlier this year by the Supreme Court in the Uber case, were met here.

First, there was there a contract to do work when Ms Agada accepted and undertook any job, and second she undertook to do any work personally.

The third question, which the judge described as “the nub of the dispute”, was whether LPC Law was a customer or client of a business undertaken by Ms Agada – did she run a business as a freelance advocate of which LPC was just one client or was she an advocate working for and within a business operated by LPC?

The fact that the advocates were self-employed and had to deal with their own tax affairs did not mean that, when they provided services, the other party should always be regarded as a client or customer, Judge Crosfil said.

“The respondent has inserted in the service-level agreement declaratory terms that describe the claimant as ‘an independent business providing advocacy, clerking and other legal services on a non-exclusive ‘when needed’ basis’.

“I consider that the only reason for the inclusion of these terms is to seek to avoid a finding that the advocates have any employment rights. They have no other purpose. I do not consider that the inclusion of these terms assists me in any way.”

The level of supervision was such that LPC Law “had a high degree of control” over Ms Agada and benefited from most of the goodwill generated, the judge found.

Ms Agada’s role was an “essential part” of LPC’s business, not ancillary, the judge went on.

“In order to be able to send advocates to court, [LPC] has to be a regulated solicitor, has to put in place a system of supervision, developed training materials and maintains [its] Advocate Network.

“[It] has obtained insurance for itself and the claimant. It requires the claimant to submit to audits for the purposes of data protection. It requires the claimant to undergo at least some training at its expense.

“I find that these matters show that the advocates are integrated into [LPC’s] business in a significant way.”

The freedom to work for others, which advocates had, did not necessarily mean Ms Agada was in the business of offering her services as an advocate to others: the Uber case recognised that drivers were free to work for rival taxi apps.

“This was not fatal to their claim to worker status,” Judge Crosfil said.

As a result, Ms Agada was a worker and therefore ‘in employment’ for the purposes of his claims under the Equality Act 2010.

LPC pointed the judge to a ruling of Employment Judge Wade in 2014, who found that a LPC advocate was self-employed.

Judge Crosfil said his colleague had appeared to consider that the features of the contractual arrangements, such as taxation, which had a bearing on employment status assisted her in answering the question of whether LPC was a client or customer.

“If she has, then in my view there was a very real risk of making a mistake,” he said.

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