Comments (0) Yesterday I spoke at a workshop arranged by Gateway Media on the theme of “Combating Tesco Law: Preparing your Brand Presence”. I tried to explain what the LSA does in about an hour – it was a bit of a rush but no one fell asleep and I hope I got the main points across. As promised I have loaded my Powerpoint presentation onto Slideshare and you can view it here;
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A while ago I wrote the first post in the UK Lawyers Blog Carnival – the Blog of Blogs, now renamed UKBlawgRoundUp.
Tessa Shepperson and I have just set up a blog for this carnival and it can be found at www.ukblawgroundup.co.uk
The next edition will be published, by Peninsulawyer on 31st March. There is a link on the new blog to the submissions page. If you’re a UK legal blogger, or writing about the UK legal scene, we want to hear from you!
We renamed it to give it a snappier title and setting up its own blog was the ideal thing to do.
I recently read a post on The Client Revolution, a US blog, called “What lawyers can learn from an Office Depot Commercial”. It’s about how small law firms can compete with larger businesses, not by trying to compete on price, but in other ways, namely quality of work. The post is well worth a read, and the You Tube video beneath is the one that Jay Shepherd, the author, refers to. Next Tuesday I am speaking at Gateway Media’s workshop on “Combating Tesco Law” and this advert strikes me as containing a very useful example of how firms can strike back at bigger competitors.
These issues are getting more relevant for practitioners by the day. John Flood, Professor of Law and Sociology at the University of Westminster reports on his blog, RATS (take a look to see what the acronym stands for) that the Legal Services Board has announced Alternative Business Structures will come into operation from October 2011 – see the press release here. Applications for ABS status will be allowed from next summer. John asks “will it be a matter of who gets there first or will the fast second ultimately win?”. I would opt for the latter: being a guinea pig is rarely a route to success.
Now that the prospect of market consolidation is getting very close, what steps should law firms be taking? Being creative, open to change and offering the legal equivalent of fixing a cheapo haircut. You just need to get your message out there.
We’ve had a problem with mice in the office recently so when I saw a tweet from @jonb1966 linking to this YouTube video, I had to put it on here. As Jon says it’s very funny, if a little disturbing. I don’t think any animals were actually hurt in making it.
Future First, a Lon
don based web design agency are running a series of one day Internet Marketing Training Workshops over the next few weeks near Old Street. The course covers the use of social media in the business environment, SEO, Blogging and Twitter. I went on the course last year and fond it very informative.
Future First also redesigned this blog for me last year and I am happy to recommend it to anyone who wants an entry level introduction to the topic. The course costs £500 + VAT but that can be reimbursed under the Train 2 Gain Leadership and Management Grant, if you qualify.
For more information, click here
Daniel Barnett’s regular news alert brought the case of Aberdeen City Council v McNeill to my attention. It provides a useful reminder about who must be in breach of the contract of employment before an employee can pursue a claim for constructive dismissal.
The facts were these:
Mr McNeill was a long standing employee of the Council. He became embroiled in disciplinary proceedings when his line manager was suspended pending investigation of alleged misconduct of a financial nature. The Claimant believed he had heard his line manager and a female employee, on two occasions, engaging in sexual activity together. It appears he was rather indiscreet in keeping this information to himself and was himself suspended for breaching confidentiality, as well as making defamatory remarks about a female colleague. That same female colleague alleged harassment, sexual harassment and bullying against Mr McNeill.
The Council then started an investigation against Mr McNeill in respect of four other disciplinary matters, including being under the influence of drink on many occasions when in the workplace, failing to act in the best interests of the Council, bullying harassing and sexually harassing female members of staff, and being uncooperative with other departments and colleagues. Mr McNeill then became unwell and the disciplinary proceedings became protracted and difficult. Mr McNeill attacked the probity of the investigation. Eventually, ten months after being suspended, Mr McNeill wrote to the Council tendering his resignation, and stating “I have no trust in the Council as my employer” and various other related matters about the way they had conducted the investigation, which he said was oppressive.
The issue then arose over whether Mr McNeill could pursue a claim for constructive dismissal against the council. What was the status of Mr McNeill’s behaviour compared with that of the employer? The Employment Tribunal took a very relaxed view of the allegations of sexual harassment made against the Claimant, dismissing it as “banter” and down-playing the influence of his drinking during office hours. The Employment Appeal Tribunal took a very dim view of that – “Again the Tribunal gave the impression that they are seeking to minimise the Claimant’s conduct”. The EAT took the view that both were parties to a contract and thus mutually obliged to perform their obligations, with Lady Smith (at para 87) saying;
“If a party to such a contract is in material breach of one of his obligations he cannot insist that the other party perform a reciprocal term”
This isn’t new law – the same principle was set out in the 2008 case of RDF v Clements all the way back to Thorneloe v McDonald & Co in 1892. This case is a useful restatement of the various authorities and noteworthy for its trenchant criticism of the Employment Tribunal that heard the case in the first instance. The EAT held that Mr McNeill had acted improperly and in breach of the implied term of trust and confidence. Therefore he could not claim constructive dismissal and lost his claim.
Is this good news for employers? On the face of it yes, because it means that an employer faced with a claim by one of its employees that it had repudiated a term of terms of the contract can defeat such a claim if it can show that the employee was in prior breach of the term. However, there is a risk for employers because the success or failure of this approach will depend upon whether the employer already knew of the employee’s prior breach. If the employer did have knowledge and did not act on it then it may be held to have “affirmed” the breach, in other words to have accepted the breach and chosen to do nothing about it. In the McNeill case the EAT specifically stated that the Council did not have knowledge of the breaches by the Claimant –they only came to light during the Claimant’s suspension. If it had the final outcome may have been very different.
If you need further advice on any of the issues raised here, or in connection with any aspect of employment law please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk
No, not a post about the dreaded Tesco law, but an article from the Metro on what you can and can’t wear in their stores.
http://www.metro.co.uk/home/812358-top-5-weird-tesco-rules
Any more ideas for what should be banned? Shell suits? Man U shirts?
It’s getting a bit scary. Recently I wrote about how I predicted that Gordon Turner’s serial-litigants.com search website for tracking down abusers of the ET system would be challenged (and it was, in Parliament). Then I wrote a piece about the need for employers to develop social media policies for use by their staff – and last weekend Vodafone hit the news when one of their employees misused the corporate Twitter account to write homophobic and sexist comments. Then Manchester United and Manchester City denied having banned their players from using social media. Finally the BBC tonight reports on a “cyberspace witch hunt” at the world’s formerly favourite airline, BA. 15 cabin crew members are reported to have been suspended for posting inappropriate comments on the Unite website. Unite retorts that the comments were on its Facebook page (so what?) and accused BA of “intimidation”. Clearly this blog is a happening place.
The article about whether employees should be allowed to blog by their employers is one that interests me, for obvious reasons. This is a personal blog, doesn’t purport to give legal advice, reflects my own views and not those of Dale Langley & Co. I would be rather displeased, to put it mildly, if I was told by the firm to desist from sharing my words of wisdom (and prophecy) with the wider world. I use it to promote Dale Langley & Co. But what if it wasn’t about employment law but some unrelated topic and that topic was a bit, well, racier? Does anyone remember the case of “La Petite Anglaise”, the English secretary who worked for an accountancy firm in Paris, kept a Bridget Jones style blog and was dismissed for gross misconduct. That was way back in blogging pre-history – circa 2006. She sued in France for unfair dismissal – does anyone know the final outcome?
The situation is relatively straightforward where the misuse takes place via the employer’s computer systems or during working hours. High ranking or high profile employees, such as Premiership football players, can probably reasonably be asked to be extra careful or even banned. The real issue arises from “ordinary” employees inappropriate use of social media.
The employer will have to be guided by considerations of damage to its reputation. Do the employee’s actions cause damage to the employer in any way? Has business been lost as a result? Arguably in these days of “no news is bad news” there is no such thing as negative publicity. Does anyone remember the fly-on-the-wall TV series about the Adelphi Hotel in Liverpool? The programmes made it look like an utter shambles, yet bookings went up afterwards. The test for any employer who dismisses a blogging employee for misconduct is whether dismissal was within the “range of reasonable responses” test. Whether dismissal was reasonable will depend upon all the facts. Would an employer be acting reasonably in dismissing an employee whose blog or tweet actually increased their business? Would it be reasonable if it was about a topic that was completely unrelated to the employer’s business? It’s a very difficult issue.
Whilst racist or homophobic comments will usually be unacceptable (as well as potentially being criminal) , what about an employee who is a member of the BNP, blogging about his political beliefs? If his employer tried to discipline him he might bring a claim under the Employment Equality (Religion and Belief) Regulations 2006 – see my earlier post on the case of Grainger v Nicholson about this issue – and an employee of a public authority might claim breach of the Human Rights Act for infringement of his beliefs or right to a private life. In the BA case above, Unite seem to be suggesting that BA is intimidating its members, presumably because of their union activities at a time of tension between the two sides. The employer could find themselves in a very difficult situation facing up to a claim for discrimination on grounds of philosophical belief.
Ultimately I think the way to look at the problem is to ignore the tools used to disseminate the comment and to consider what the employer’s reaction would be if the employee wrote a scurrilous article for a newspaper or made the comments on radio, television or orally. The only difference with social media is that it is so much easier to get published, the audience far wider and the speed of dissemination much quicker. Employers still need to cover themselves to make sure they have set out to their employees what is and is not acceptable usage.
I came across a really interesting post on this issue from an American blog called Proactive Lawsuit Prevention (see link below). It sets out some of the specific issues that the policy needs to cover – ethics, loyalty, confidentiality, maintaining optimum performance and so on. Well worth a read.
My next prediction? There’s going to be a lot more of it about. Oh, and with a general election coming up, a member of the Cabinet will get caught out. And a member of the England World cup squad.
Related Posts
Why Employers need a social media policy
Other blog posts
Elvis has left the building – Katz Consultants & Associates
How prepared are you for the Legal Services Act?
Gateway Media are a very accomplished media agency with some blue-chip clients. I was therefore delighted to be invited to speak on the 2nd March at the above workshop about the Legal Services Act 2007 and the implications for lawyers. I will be taking a look at the Legal Services Act and its main provisions in a talk entitled “The Legal Services Act Explained“. The introduction of Alternative Business Structures is now only a year away.
After me will be two very interesting sessions on marketing and the use of digital media. The “Marketing Refresher” session is aimed at lawyers and how to promote professional services. It will deal with marketing basics and the issues business owners need to think about when promoting their brands.
The final session “Practical Steps” will be devoted to digital media, promotional strategies and developing your online presence.
It should be an interesting (half) afternoon – and it’s free!
You can register at http://tiny.cc/V4hlI
Or phone: 020 3056 4063
Last week’s Law Society Gazette had an amusing article in its diary section, about a man in a post office sticking stamps onto the scores of valentine’s cards he had written, all of which said “I love you from ?”. He was, of course, a divorce lawyer touting for business. I laughed. However, I wasn’t so impressed by the way the scene was set because he is introduced to us as a “balding middle aged man”. Now, can anyone explain why this is so funny? When are the Employment Equality (Prohibition of Baldie jokes) Regulations coming into force? Not that I’m sensitive about it you understand…
P.S For those readers amongst you similarly follically challenged, baldness has been held not to be a disability under the DDA 1995.
I am a Partner in Dale Langley & Co of 60 Lombard Street London EC3V 9EA. Please call me if you would like advice on any issues relating to employment law or litigation. I only give legal advice on specific matters through the firm, not this blog
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