Last year the High Court issued a judgment in the case of Mazur v Charles Russell Speechlys LLP [2025] EWHC 2341 (KB). This was not an employment case but has been described as a “dramatic” judgment that has “sparked alarm across the legal profession.” The case was about when, under the Legal Services Act 2007, a person is authorised to ‘conduct litigation’ in court proceedings. The decision drove a horse and cart through the established litigation practices of many law firms. In the aftermath, well established conduct that many law firm followed who were not authorised persons under the Legal Services Act was not longer possible and Regulators scrambled to give guidance to those affected. Fortunately, the judgement was appealed (by an interested party) and a more sensible decision was reached by the Court of Appeal in April this year to clarify that the key test is not who is doing the legal work but whether it is conducted under meaningful legal supervision by a person with conduct of litigation practice rights.
Shortly after the initial High Court decision one legal body (the Chartered Institute of Legal Executives), even suggested in guidance to members that persons who did not have practice of litigation rights may not be able to conduct work in the EAT. They were plain wrong on this and, to be fair, pretty quickly updated their guidance to clarify the position after that mistake was pointed out.
However, this decision and the wider question of who is allowed to represent a person in ET and EAT proceedings is an opportune time to set out who can in fact lawfully perform this role. When even a legal regulator misunderstands the legal position it is not surprising that many litigants are also confused. To set out the position I will summarise the position on representatives under two headings:
- The categories of person who are allowed to represent?
- When representing a person is a crime, even if they are one of those categories of person allowed?
The categories of person who are allowed to represent?
In terms of the standing between who the ET or EAT will allow to allow represent a Claimant or Respondent in the ET and EAT. If you can represent the party in one you can also do so in the other. The general position is set out in section 6 (for ET) and section 29 (for EAT) of the Employment Tribunals Act 1996 which sets out who “may appear before an employment tribunals in person or be represented by [them]”. The three types of person are:
- a solicitor or counsel – the terms are not defined in the Act (or the Interpretation Act 1978) so likely to be the ordinary meaning.
- a representative of a trade union or an employers’ association – there appears to be no restriction that the claimant/respondent must be a member of the relevant union/employers’ association.
- and, a catch all third option of “any other person.”
So the answer to the question is unambiguous, there is no requirement to be a authorised person or have litigation practice rights to represent a claimant (or Respondent) in the Employment Tribunal. Whether a person is legally qualified or not is no barrier to representation of a party in ET and EAT proceedings under the Employment Tribunal and Employment Appeal Tribunal legislation.
When representing a person in the ET or EAT is a crime, even if they are one of those categories of person allowed?
Even though the Employment Tribunal Act is unambiguous that “any other person” is permitted to represent anyone in the ET there is a complication. If someone is advising a claimant or prospective claimant in an ET claim or about a right to bring an ET claim and this is conducted on a ‘for profit’ basis and they are not an exempt person (such as lawyer or union representative) then this amounts to the conduct of a claims management company, which requires registration and authorisation by the Financial Conduct Authority (FCA). This is because one of the categories of work for which FCA authorisation is required is the “Even though the Employment Tribunal Act is unambiguous that “any other person” is permitted to represent anyone in the ET there is a complication.
If someone is advising a claimant or prospective claimant in an ET claim or about a right to bring an ET claim and this is conducted on a ‘for profit’ basis and they are not an exempt person (such as lawyer or union representative or firm subject to other legal regulation) then this amounts to the conduct of a claims management company, which requires registration and authorisation by the Financial Conduct Authority (FCA). This is because one of the categories of work for which FCA authorisation is required is if a person “conducts such activities on a for profit basis” and without this this potentially amounts to a criminal offence.
So if you’re a potential claimant and being asked to pay for employment law advice or representation part of your due diligence before paying anything out or agreeing is to check that the representative is in fact allowed to represent you.
If a representative is not a qualified lawyer, trade union representative or acting for you on a non-profit basis then you can check if they are authorised here: Check if a claims company is registered – GOV.UK
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This blog is specifically intended for the benefit of trade union reps and members but I hope will be of interest more widely to other advisors, and workers. If you are not a union member then now is a good time to put that right, the TUC offers help selecting the right union to join (although feel free to message me if you’re unsure about what’s best and I am happy to make a suggestion depending on your circumstances).
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