Comments (1)

By Michael Scutt, 29/01/2010 10:01 am

Truly I can see the future. A few weeks ago I wrote on this blog about a website run by Gordon Turner and Damien McCarthy, the two employment lawyers who set up www.serial-litigants.com, designed to keep a check on those claimants who repeatedly bring claims against different employers (or potential employers) for the same thing – usually discrimination claims.  I welcomed the scheme but thought that it might hit problems with the Data Protection Act, which governs what information can be held on people and how it can be used.  Then, lo and behold, I received this email from Gordon Turner a few days ago;

Dear Michael

 ALL GOOD IDEAS MUST BE SHOT DOWN

 …or so it seems. As you predicted, our service is to be challenged, although it is not clear why because (a) we have no database and (b) have already taken and implemented advice from the ICO.

 We are meeting an MP on Monday to see if a helpful EDM can be set down in response, namely to properly debate the degree to which serial litigants are (or may be) a ‘big problem’.

 With one claimant alone having brought well in excess of 50 claims (without ever showing up to hearings) our concern is that the problem or serious threat of a problem by serial litigants is neither audited or monitored in any way.

 There must be a way of striking a balance between the policy issues of dispensing with the Register and the needs of the public and employers.

 Regards,

Gordon Turner

 The EDM (Early Day Motion) will probably not be debated; most aren’t.  EDMs are a mechanism whereby backbench MPs can promote issues and raise awareness.  Although this EDM does criticise the abuse of the system by serial litigants, it does not suggest a practical alternative and that is regrettable.  This is the text of it;

I don’t think the reputation of the Oracle at Delphi is in too much danger as it was always likely that a challenge to this website would arise.  Serial-Litigants.com works by searching the Register of Decisions held by the Employment Tribunal.  If the same person keeps cropping up time after time this is then material for cross-examination at the final hearing or, more likely, for a strike out application early on. The idea is that when a Claimant is faced with evidence that he/she has been submitting multiple clams his credibility will be so badly damaged that no Tribunal would give the allegations credence. In my earlier post I said that this scheme deserves to succeed and I still think that. Some sort of safeguard is necessary for preventing vexatious litigants from making a fast buck out of the justice system – in the worst cases putting in multiple claims with the aim of forcing the employer into making a financial settlement is no better than extortion.  What is missing from this debate so far is any sort of statistical analysis on how significant a problem it is.  The EDM states that it “does not accept that these individuals are a big problem”:  does anyone know of any figures out there? Perhaps Gordon Turner or Damian McCarthy could respond on that?

Where the EDM might be on stronger ground is in saying that the website could be used by employers for screening out job candidates who had previously taken legitimate claims against their previous employers.  That is a concern in just the same way as the blacklist maintained by The Consulting Association on construction workers and the Retail Consortium’s register on shop-workers was.  I can see that the website could be misused in this fashion but, in the bigger picture, how many employers are going to pay the fee (currently £99 per search, although temporarily reduced to £50) each time they employ someone?  I think it unlikely that many employers will do that. Which is the bigger risk: serial litigants ripping off innocent businesses or honest employees being screened out by unscrupulous employers?    How else can this problem be tackled if not by a search based system?

Well, I can think of two options. One way would be to introduce Tribunal fees upon issuing proceedings, in the same way that is required when commencing a claim before the County or High Court.  The level of fees can be swingeing though, especially in the bigger claims and that is because (laughable) government policy for some years now has been to make the court system self-financing by its users.  Hence you have to pay a large fee even if you want to cough in court.  Employment Tribunals do not require a fee to be paid and the system is “free” at point of delivery.  Introducing large issue fees might stop the scamsters but it would also prevent genuine claimants from getting access to justice and would be a political non-starter.

The second option would be to introduce “costs-shifting” in the ET.  This occurs in the civil courts and means that the winner gets his costs paid by the losing party. In ETs it is very unusual for the Employment Judge to award costs against a party, so the general rule is that each party bears its own legal costs win or lose.  It is this rule that makes it attractive for serial litigants to “try it on” because they know many employers will pay up a “nuisance settlement” sooner or later to avoid the case going to a full hearing because they won’t want to incur legal expenses that they won’t recover from the Claimant.  That is why serial litigants are performing a type of extortion, in my view. 

The problem is in identifying the serial litigants. Someone who has brought fifty claims against fifty different employers ought to be a surefire candidate; but what about someone with ten, or five, or (worryingly) two claims?  An employee who has had the misfortune to be involved in previous ET proceedings is not prevented from bringing his/her claim by this website.  It is for the Respondent (the employer) to adduce the evidence and make of it what it will: similarly the employee can give evidence to explain.  Most employers would probably be keen for costs shifting to be introduced into the ET system, but I can’t see it happening any time soon.  Instead the serial-litigants search system offers a practical option accessible by all.  I don’t have shares in it, I don’t know Gordon Turner or Damian McCarthy (although I do instruct other barristers in his chambers) but I do think it deserves to succeed.  No one is well served by allowing serial litigants to abuse the system, least of all genuine employees with honest claims.  In his email to me Gordon Turner  writes that he is seeking to drum up support from a sympathetic MP to place an EDM in response.  I look forward to news of developments.

 I would be very interested to hear from anyone – lawyer, employer, or MP – who has any information on how widespread this problem is, or any anecdotes on serial litigants (on an anonymised basis please).  

Related posts:

Serial Litigants Beware

Blacklists to be blacklisted?

A Rant about Data Protection

Comments (7)

By Michael Scutt, 26/01/2010 10:00 am

Everyone is talking about social media these days and no longer is it confined to the purely social.  Many businesses are using it to promote themselves; good heavens, even lawyers are getting into it.  But use of sites like Facebook, My Space, You Tube and micro-blogging sites like Twitter present multiple challenges to employers. 

There have also been well publicised examples of employees being caught out by their status updates on Facebook – like the woman who complained that she hated her boss and called him a pervert, forgetting that he was one of her “friends” on Facebook.  He read the comments and a beautiful friendship was ended.  Other employees have pulled “sickies” and posted that onto Facebook.  Bad move.  Not only will the boss probably get to hear about it, the employee will become the laughing stock of the internet as millions of people all over the world receive the news of the indiscretion via round-robin emails.

On one level employers may not be persuaded of the merits of Web 2.0 and the plethora of seemingly time-wasting opportunities that it provides.  There is a great risk that staff could become inefficient and unproductive in surfing Facebook all day, or watching video clips on YouTube and that must be particularly galling for those employers who see no business application for these new technologies.  The temptation might be to come down hard on employees but that may provoke claims for constructive dismissal or unfair dismissal.  In an environment where for some people, surfing Facebook is as natural as reading a newspaper or a novel, an outright ban on accessing social media may be unreasonable.

For enlightened employers who do see the benefits of Twitter, YouTube, Facebook and the humble blog, the challenges are increased.  Not only is there the risk that some employees will take advantage to spend time promoting themselves rather than the business, they may post inappropriate comments on the web and severely damage the reputation of the business.   Worse still, the employer may end up on the wrong end of an action for defamation.  No longer is it enough just to have a policy covering access to websites and use of email (and don’t forget to include mobile phones and Blackberrys/iPhones in those policies).

In my view, employers face three challenges;

1. Excessive use of social media leading to loss of productivity

      2.    Risk of reputational damage/unwanted litigation to the business

      3.    Avoiding inappropriate use/abuse of social media without upsetting employment relations

Employers need to develop a strategy for use of social media in their business. This should not only cover how the business intends to exploit web 2.0 for its own purposes, but also a policy governing how employees should use it, again not just for business purposes but also for private usage.  Don’t forget that younger members of staff (“digital natives”) may be much more in tune with social media than older people.  In order to avoid grievances or unwanted employment tribunal claims be consistent in applying the policy.  As a solicitor who often advises employees, I frequently hear clients say that “Flossy was only given a written warning for the same thing” when they’ve been dismissed.      

The policy needs to take account of how the business wants to exploit social media and a “one size fits all” model isn’t going to work.  Instead the business needs to ask itself these sorts of questions;

1. Do we want to use social media to promote the business?
2. Who in the business will be responsible for using social media?  Senior management or more junior staff?
3.  What guidelines do we want to set them (these will probably need to be more specific for more junior staff)?  The guidelines will need to go beyond banning obscene or discriminatory comments and give guidance on how the business wishes to be perceived in the wider-world.
4. How will usage be policed and what sanctions will be put in place for misuse or abuse?
5. Will usage of the company’s computers be allowed for private use of Facebook, Twitter, etc?  If so, will usage be restricted to lunch-breaks or before/after work?  A complete ban may be unenforceable or risks causing ill-feeling.

It’s not an exhaustive list and I would be pleased to hear from anyone with additional questions that ought to be added on.

To be successful, all users will need to be “on message”.  In turn this may mean getting all users to “brainstorm” to devise the “voice” of the business.   Social media offers massive potential for businesses to communicate their message, develop their identity and build their brand.  Having a successful social media policy is at the heart of getting that right.

I would welcome your comments on any of the above and if I can assist further please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

Comments (0)

By Michael Scutt, 25/01/2010 10:07 am

There have been some interesting reported cases over the last couple of weeks on a broad range of topics.  For instance,

Legal Representation at Internal Disciplinary Hearings

In G v X School, a Court of Appeal case, it was held that a teaching assistant was entitled to legal representation at an internal disciplinary/grievance hearing in circumstances where that person’s right to practise in the profession was at risk.  In this particular case G was a teacher accused of sexual contact with a pupil at the school where he taught.  He was dismissed following investigation but was not allowed to have legal representation at the internal disciplinary hearing.  Subsequently the school reported him to the relevant regulatory body for consideration of whether he should be barred from working with children.   The case of Kulkarni v Milton Keynes General Hospital NHS Trust [2009] was followed and it was held that Article 6 of the ECHR required G to have legal representation because of the effect his dismissal would have on the decision of the ISA.  Note in both these cases they were against public authorities and the same result would not necessarily be the case if the employee was working in the private sector.  For example a banker facing a disciplinary hearing for an alleged offence of dishonesty would probably not be entitled to rely on this case even though his dismissal would be reported to the FSA and could lead to him losing his registration to practise.

Age Discrimination

The Employment Equality (Age) Regulations 2006 prohibit behaviour that subjects someone to less favourable treatment on the basis of a person’s age.  However, it can be permissible to discriminate against someone on the ground of their age if there is a “genuine occupational requirement”. The case of Wolf v Stadt Frankfurt Am Main heard before the European Court of Justice (ECJ) held that it was lawful for an upper age limit of 30 to be applied by the Federal state of Hesse in Germany on recruiting firemen.  However, in another German case before the ECJ, Petersen v Berufungsausschuss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe it was not justifiable for a maximum age of 68 to be imposed on doctors and dentists practising in the state medical system where it was alleged that the rule was necessary to protect patients from a decline in performance as doctors and dentists got older: no such age limit existed in the private sector.   In other words, age limits on occupations can be imposed, but there will need to be a good reason for doing so.

Disability Discrimination

The definition of disability contained in the Disability Discrimination Regulations 1995 is a complex one and requires that the impairment be permanent or lasts for at least one year.  The case of Patel v Oldham MBC, heard before the Employment Appeal Tribunal (EAT) decided that when assessing whether the impairment will last for 12 months or more, it is necessary to consider whether another illness is likely to develop or has developed for the purpose of Schedule 1 paragraph 2 of the DDA.   In other words, if the secondary condition develops, or is likely to develop, from the original impairment it can be aggregated onto the original condition for the purpose of the section.  In other words, don’t just consider the original illness/injury but consider what secondary consequences there could be. 

 If you need advice on any of the above issues, or on anything to do with employment law, please contact me at Dale Langley & Co – 0207 464 8433 – or michaelscutt@dalelangley.co.uk

Comments (0)

By Michael Scutt, 19/01/2010 10:00 am

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”.  Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.   

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination.  All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal.  Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.  

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful.  There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell.  Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.  

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.  

How to mitigate the risk of these claims arising?   

1. Adopt best practice  

The Health & Safety Executive publishes a great deal of information on the subject.  In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change.  The TUC and ACAS also publish useful materials on stress at work.  

2. Be aware.  

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out.  This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW).  The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”.  The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress.  An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.     

Take action before it is too late

3. Have a stress policy and adhere to it  

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.  

4. Act fairly and consistently  

Stress claims can arise from incidents of bullying/harassment and victimisation.  Put in place policies promoting equality in the workplace – and enforce them.  Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion.   An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.  

5. Contracts of employment (1)   

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report.  This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.  

6. Contracts of employment  (2)   

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting.  Employees tend to become well again once they are not being paid.  SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15.  Click here for more details on SSP.   Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own.  Please seek legal advice before deciding to do so.  

7. Act decisively  

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it.  Take legal advice as soon as possible.  

Related posts: Coming Soon … Miserable Monday  

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.  

 None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you.  You should not  rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation.  I am always happy to provide legal advice via Dale Langley & Co.

Comments (1)

By Michael Scutt, 18/01/2010 10:20 am

As promised last Monday, I am delighted today to welcome my first guest blogger, Ian Barratt (pictured, right) of Mind Strengths Ltd, to present his Seven Top Stress Management Tips on this third Monday of January, the allegedly most miserable day of the year. Ian is a qualified stress management consultant speaker and author.  His book “The Phoenix Strategy”, co-authored with Amanda Robinson was published last October.  Mind Strengths Ltd is a consultancy company offering workplace strress management , wellbeing and support services.  Tomorrow I will look at how employers can minimise the risk of being sued for stress at work by employees. 

 Today, Ian focusses on how employees can manage stress. 

1. Identify and write down your major stressors 

By taking time to find out what is causing you stress, you will be taking a big pro-active step towards managing your problem areas. Start by writing these down, no matter how trivial they may seem. Then, focus on the top 2 or 3 that cause you the most stress impact and work on a plan to deal with these one at a time. Never try to fix all the problems at once or in an unrealistic timescale. You should also now be able to let go of the trivial stressors as these are not so important. 

2. Establish some goals and objectives  

It can be very satisfying to set some personal goals and objectives to help you kick start the New Year. Make these meaningful and achievable as there is little point in setting personal goals that you either get bored with or you cannot accomplish. Make sure that you set your goals over short, medium and long term timescales to keep you fully focussed throughout 2010. 

3. Develop a Personal Relaxation Plan 

A relaxation programme can be as simple as deciding to walk more, to perhaps joining a gym. Even if you take exercise for just 20 minutes a day, this will help your physical and mental wellbeing. An often overlooked benefit of exercising is that our brains release endorphins, which have as “feel good” effect and gives us feelings of euphoria. If a more mundane relaxation programme is your choice of escape, try meditation, yoga or pilates – all of which will teach you a range of breathing exercises that are critical to relieving and beating stress. 

4. Give yourself some thinking time 

We all need some down time occasionally where we can think more clearly about circumstances and events that may be causing our stress levels to rise. Setting time aside to think about these problems will help you to rationalise what is occurring and provide some clarity to help you move forward. If this proves difficult, step outside yourself and look back in as an outsider. You may find this makes things easier as you are viewing the problems from the outside as a third party. Ask yourself “what would I do if I were advising someone else?” 

5. Be positive 

Many stress related problems can be made worse by low confidence and lack of self-esteem. When you are down and depressed, any issue, no matter how big or small, can have a negative effect on the way you feel. Having low self-esteem generally means that you have negative thoughts about the outcome of a particular situation, event or about yourself. Learn to convert any negative thoughts into positive thoughts and positive energy. Write down any problem areas and you will find that the whole situation becomes less threatening on paper. Change your thinking from “I can’t do” to “I will be able to do.” 

 6. Practice good time management 

Time management isn’t for everyone but even when you can apply some of the theory, you will see noticeable differences in the way you run your life and it will help you reduce stress. For example, making a list of your tasks at work is a great start but not very useful if you don’t know how long each task will take, so remember to do this too. Also, prioritise tasks and ensure that you have a clear picture of what you will be doing today and each day of the working week – and stick to your plan! 

7.  Keep a Stress Diary 

The Stress Diary is a fantastic way to keep track of what may be causing you stress and will help you identify any patterns that may be occurring. To make this a meaningful exercise, you should keep the diary for a minimum of 2 weeks as this will enable you to see any trends. Make a note of anything that causes you stress on a scale of 1-10 (10 being high) but only keep scores of 6 and above. Discard the rest as they should be minor stressors – you need to focus solely on the major stressors. You may find some of the findings surprising! Finally, work on a plan to eradicate the problem areas. 

The Seven Top Stress Tips have been compiled by Ian Barratt, founder director of Mind Strengths Ltd. Ian is a qualified stress management consultant, author and speaker, who specialises in identifying and managing stress and improving wellbeing at both a corporate and individual level. 

For further information, please contact Ian on +44 (0)1634 314090 or via email at ian.barratt@mindstrengths.co.uk.  The website contains some additional useful information and can be found at www.mindstrengths.co.uk.

Comments (0)

By Michael Scutt, 13/01/2010 10:00 am

Over on the Dale Langley & Co website I have written about the recently reported case of age discrimination by Achim Beck at his former employer, CIBC. Click here for the post.  The case was reported on Times Online on the 29th December.  Although Mr Beck has succeeded with his claim, the Employment Tribunal has not yet made an award of compensation and a “remedies hearing” for that purpose is awaited in due course, unless it settles beforehand.   I’ll keep an eye out for what could be a big award.

Comments (0)

By Michael Scutt, 11/01/2010 9:56 pm

I saw in this the Financial Times on Saturday; marvellous.

Comments (1)

By Michael Scutt, 11/01/2010 12:59 pm

I don't like Mondays - The Boomtown Rats

So, it’s Monday again.  It always seems to be Monday and they never seem to get any better.  The Boomtown Rats didn’t like them, still less Brenda Spencer the 16 year old girl whose 1979 shooting spree in San Diego and subsequent blunt explanation inspired their song.    Even if most people aren’t drawn to actually shooting their fellow workers, the third Monday in January is the worst, bleakest, most depressing day of the year.  This is supposedly because Christmas is a distant memory, the credit card bills need paying, the weather is awful and the next holiday is months away.  See this article from Mail Online last year for the full horror story: http://www.dailymail.co.uk/health/article-509367/Its-miserable-Monday-How-think-positive-bleakest-day-year.html   

Of course, there is feeling down and there is full on mental illness, which is of a different magnitude altogether. Mental illness is still stigmatised and not properly understood.  It is a real issue for society as levels of depression and anxiety seem to be increasing.  This is particularly so in the workplace.  The Health and Safety Executive (HSE) has produced statistics for 2008/09 which suggest that;   

• In that year 415,000 people in work believed they were suffering from work-related stress at levels to make them ill
• The 2009 Psychosocial Working Conditions Survey said that around 16.7% of all working individuals thought their job was very or extremely stressful
• The Labour Force Survey (LFS) suggests that 11.4 million working days were lost through “self-reported work-related stress, depression or anxiety” in 2008/09
• GP data collected by a research group called THOR, run by Manchester University, shows that 30.9% of all diagnoses of work-related ill-health are mental health related and the average length of sickness is 26.8 working days

Click here for the full HSE summary.  The statistics show that, despite what might be thought anecdotally, the levels of self-reported stress was broadly level throughout the last decade, although THOR’s figures show that Occupational Health Physicians report a clear upward trend over that period (but psychiatrists don’t: they report levels remaining stable).  What does this say about Occupational Health Physicians: correctly sympathetic or not applying the right tests?   

 These are worrying figures and demonstrate that stress at work is a significant problem.  However, the first two statistics above only deal with self-reported stress and that must raise concern that some employees exaggerate their symptoms or actively “play the system”.  For a combatively worded argument in favour of the latter proposition, please see the letter from Helen Giles, an HR Director in Personnel Today on the 7th January.  The central point she makes is that there is a difference between people who claim to be ill from those who actually are;   

“Any HR practitioner will … [say] … that in nine cases out of 10 where an employee is told they are facing any sort of disciplinary or capability procedure, they run to the doctor for a certificate saying “work-related stress” and stay off work for several weeks, at the employer’s expense, as a way of avoiding or delaying proceedings”    

Strong stuff, but not untrue, although I would query whether the rate is really as high as nine out of 10.  Without doubt though, it happens.      

Ian Barratt of Mind Strengths

What can be done if you’re an employer, or how to deal with stress if you are an employee? I have no magic wand but I’m delighted to announce that  I’ve asked Ian Barratt of Mind Strengths Limited, to write his “Seven Top Tips for dealing with Stress” which will provide common-sense ways to keep stress under control.  Mind Strengths is a specialist consultancy advising both employees and employers on how to cope with stress at work.    

 In their own words   

“(Mind Strengths) specialise in helping clients identify, reduce and manage the risk of stress in the workplace. In turn, this helps clients save money, reduce absenteeism caused by stress and improve productivity and morale.”   

 To coincide with “Miserable Monday” Ian’s Seven Top Tips will be published on this blog next Monday 18th January, along with my own tips for employers on how to avoid stress at work claims.   

To ensure you don’t miss it, please subscribe to the RSS feed or subscribe to the email updates.

Comments (2)

By Michael Scutt, 06/01/2010 5:37 pm

Wot, no snowman?

I’m not referring to the five inches of snow outside as I write this, and the inevitable disruption caused to roads and railways for the next week,  but instead I am considering what the main statutory changes affecting employment law issues in 2010 will be.

January  

Not much will happen this month while everyone looks in astonishment at their credit card bills, but just a reminder that the Vento guidelines on awards to be made in cases of injury to feelings in discrimination cases look to have been increased late last year in the case of Da’Bell v NSPCC. The Court of Appeal case in Vento v Chief Constable of West Yorkshire Police in 2002 set three main bands for ETs to consider when making awards for injury to feelings; 

Lower – £500 – 5,000                       – for one-off or isolated incidents 

Mid     - £5,000 – 15,000 – for more serious incidents but not of the most serious nature 

Upper -£15,000 – 25,000               – for the worst examples of discriminatory behaviour, such as where there has been a campaign of bullying and harassment.  Only exceptionally should awards be made in excess of the upper figure. 

Since 2002 these bands have not changed.  It is now anticipated that the new bands will be 

Lower:  £? – 6,000 

Mid – £6,000 – 18,000 

Upper – £18,000 – 30,000 

For a fuller and very helpful discussion see Usefully Employed’s post on the subject.  

February 

This month will see something that hasn’t occurred before.  The maximum compensatory award that can be made by an Employment Tribunal for unfair dismissal will actually decrease. The Employment Rights (Revision of Limits) Order 2009 states that the maximum award will decrease from its current £66,200 to £65,300 for all claims where the event giving rise to the claim  occurred on or after 1^st February 2010.  This is because the maximum amount is linked to the Retail Prices Index (RPI) and that fell by 1.4% in the year from 1^st September 2008. 

The MINIMUM AWARD that can be made to an employee excluded/expelled from a Union and not re-admitted by the time the case reaches an ET falls from £7,300 to £7,200 

The maximum guarantee payment to an employee under s.31(1) ERA 1996 decreases to £21.20 per day. 

Each February also sees various other rates and limits amended – usually upward.  This time though the maximum weekly award, used for Statutory Redundancy Pay purposes and calculating the Basic Award in Unfair Dismissal cases will remain at £380, but only because it was increased to that figure last October.   

April – other notable increases, will be 

Statutory Adoption         } 

Paternity                            }                          all increase from £123.06 to £124.88 per week 

Maternity Pay                   } 

Maternity Allowance      } 

But, Statutory Sick Pay (SSP) will remain unchanged at £79.15 p.w 

This month will also see employees at employers with at least 250 employees acquire the right to request time off for studying or training relevant to the business.  The right is simply to request time off NOT for the employer to fund the training. 

Income Tax will rise to 50% for those earning more than £150,000 p.a 

October 

Legislative developments tend to occur in April and October now.  In October it is expected that the Equality Bill will come into force to hopefully bring some order to the convoluted and confusing plethora of anti-discrimination laws currently on the statute book. It won’t just tackle discrimination in the employment arena, but will be wider ranging. Contractual provisions that prevent employees discussing their pay with workers are expected to be made illegal and the government will acquire the power to force privatre companies to disclose gender-pay details.  More on all this in due course, assuming that it survives a change of government 

Throughout the year there will be new cases being decided that will make the headlines, or appeals considering cases that caused a stir in 2009.  I will cover these as they come up so please subscribe to the RSS feed or to the email updates for “breaking news”. 

If you need advice on any employment law issues please call me on 0207 464 8433 or email me at michaelscutt@dalelangley.co.uk.

Comments (9)

By Michael Scutt, 04/01/2010 10:58 am

UK LAWYERS

Blog of blogs 

By supporting each other we raise the profile of us all      

Edition No.1

This is the first edition of the UK Lawyers Blog of Blogs and has nothing to do with the esteemed Blawg Review from across the pond.  Originally I planned to produce this blog carnival for the end of October, but got rather busy at work and home and the timescale slipped somewhat.  So, what was planned to be an Autumn review of the blogging scene has become a New Year review instead.  That’s no bad thing because the Christmas period has brought out some cracking posts and I finally have the time to do some serious blogging.  Unfortunately, sitting in front of the laptop isn’t helping my Resolution to lose weight by becoming more active and only increases my calory intake. Like Oscar Wilde, I can resist anything but temptation and there’s always room for one more mince pie, after that last turkey sandwich, when doing some serious surfing of the UK legal scene.    Reader, how I have suffered researching and writing this.            

Not me, not even a close relation

This Christmas’s vital statistics                       

Turkey sandwiches consumed since Dec 26th: 14                     

Mince Pies to date since Christmas Eve: 554 (approximated)             

Extra helpings of Christmas Pudding: 5                  

Litres of alcohol: not recorded                     

Gallons of tea: 38                     

Christmas presents unwrapped, including childrens’: lost count                      

I had been thinking about producing a more Anglo-centric blawg review for a while and I first raised it, when life was a bit quieter during the summer, on the UK Lawyers forum on Ning set up by Tessa Shepperson of Landlord Law and Solicitors Online Blog fame.  Tessa set up UK Lawyers to raise the profile of lawyers based in the UK who use social media to promote their practices.  There are currently 11 members of the forum (nine of whom blog) and membership is by invitation only, so I was honoured to be asked to join.            It seems to me that solicitors (and barristers) in the UK have not embraced social media nearly as much as their American counterparts.  Over the last eighteen months/two years the number of lawyers blogging in the UK seems to have increased dramatically, but there are still nowhere near as many UK law blawgers as in the USA.  One English solicitor redressing the balance is Tessa Shepperson – more on her later on.  There are of course bloggers like Charon QC, Carl Gardner at Head of Legal, the infamous Geeklawyer and John Bolch of Family Lore fame; all three are practically blogging royalty and John is also a member of this forum.  They have all hosted Blawg Review.  Other bloggers I enjoy following include Usefully Employed, Nearly Legal and Naked Law.   Nearly Legal’s post rounding up their year shows how successful a blog it has become; their readership stats are impressive and have me reaching for another large one as I write this.  I enjoyed Usefully Employed’s analysis of the law relating to overweight bus drivers back in October.  Whether obesity can be considered a disability and thus qualify the larger sized employee for protection under the Disability Discrimination Act is an issue that landed on my desk earlier this year and I agree with Usefully Employed that protection may well apply.  I hit upon Naked Law in the hope of finding something a bit racier than employment law and was duly rewarded, albeit not in the way I initially envisaged.  Their post on website disclaimers was particularly useful.                     

 Moving outside my usual sphere of legal blogs Delia Venables’ Legal Resources in the UK and Ireland is the obvious place to start for an overview of the UK legal blogging scene.  She lists over 90 blogs in the UK, and more for Ireland.  Bloody Relations must be drawing good traffic at this time of year: I remember from my (thankfully) long ago days practising family law ( andI emphasise practising here)  that the New Year always produced a rush of new instructions from couples that could no longer stand the sight of each other.  Often after a couple of meetings and a few telephone calls I was sympathising with the unseen other half. Aside from that blog there are all sorts of legal subjects that  law bloggers blog about: IT and technology, agriculture, crime, discrimination, mediation (see Human Law Mediation by Justin Patten, to whom I owe many thanks for all his helpful comments  since I started blogging), legal news, IP  and, of course, employment law.      Delia’s list only covers the main blogs – there are many more out there as can be seen by looking at Charon QC’s links pages.                 

Property law is also a popular topic on which to blog about, which brings me back to Tessa Shepperson.  She is a sole practitioner based in Norwich and acts for both landlords and tenants in what can be an unsung area of practice and is a well-known figure in the legal e-world. Professor Richard Susskind also gave her a name-check in his book “The End of Lawyers?” and suggested that the way her practice is structured is an example of how practitioners may face up to the challenges ahead posed by the Legal Services Act and, more so, by the ever increasing use of IT.  Instead of being run as a “traditional” legal practice, which requires clients to pay for “bespoke” legal advice (aka the “one-one” model) she has developed a website, solely devoted to landlord and tenant issues, which provides some free advice, but also offers the option to join as a member for varying periods of time (and price) to access more detailed advice and to participate in a lively forum with other users to ask questions and seek answers to issues.  Tessa uses her blog to promote new initiatives, case law developments, and newsworthy items.  Her practice is founded on the integrated use of IT, rather than most firms where IT is “bolted on” to improve the service (e.g wordprocessors rather than typewriters, email rather than snail mail, websites to tell you where the office is, etc).  Anyone wanting 1-1 advice can email Tessa with their problem, pay a fixed fee of £85 and receive the advice by email a couple of days later.                       

Tessa Shepperson

Tessa writes two blogs – Landlord Law and Solicitors Online, in addition to running her legal practice. A good example of the issues she writes about on her blog is given here http://landlordlaw.blogspot.com/2009/09/dps-tenant-with-ccj-unable-to-claim.html (when her blog was at Blogspot – she has now moved it to Wordpress). This was a post that Tessa wrote back in September around the time we discussed creating this blog carnival and discusses a problem that a tenant had when trying to recover their deposit from a difficult landlord.  The tenant had to issue court proceedings because the landlors wouldn’t co-operate with the arbitration scheme that landlordand tenants are now supposed to use when they get into a dispute.  Deposits are now held by third party companies and, in this case, DPS, the company holding the deposit wouldn’t release the monies to the tenant despite her having obtained a County Court judgment against  the landlord because they weren’t specifically mentioned in the final Order and that was said to breach their terms and conditions.  A useful debate then followed in the comments on the post, including a representative from the company concerned.  The thread ends with the company refusing to release the funds which seems, in all the circumstances (including that their interpretation of the relevant legislation comes in for a pasting from some correspondents) unnecessarily obstructive.  We’re not told whether the landlord is an individual or a business but, if the latter, presumably the DPS’s terms and conditions could be challenged under the Unfair Contract Terms Act 1977 as the tenant must be dealing as a consumer?  In reality it would not be financially viable for tenants to make that challenge.                        

 Another good example of Tessa’s writing is her “Look Back at 2009″, which covers all the main activity on LandlordLaw last year (see the link above). I am slightly in awe of how she manages to find the time to write all that she does and still find time to run a legal practice.  Her Solicitors Online Blog is also an interesting read and covers issues such as blogging, online networking and the odd moan about the SRA and practising certificates.  However, I particularly enjoyed her post on getting to grips with IT .  Good sensible advice.                     

 Tantrums thrown over Christmas presents: 5                     

 Tantrums thrown by kids over Christmas presents: 0                      

Interesting tipple Muhammad

 The UK Lawyers group contains other well known members of the UK social media circle.  As well as Tessa there is John Bolch of Family Lore fame.  John has also hosted Blawg Review in the past and has just created Family Law focus, which is a round up of family law news in the news, recent cases and his podcasts.  He blogs together with his confidant Muhammad, a rather splendid looking and well travelled black cat who spent Thanksgiving in the USA and writes letters home to his master.  Clever cat.   He wrote to John giving some interesting background on the Tiger Woods story and also related how someone in Ohio was convicted of being drunk in charge of a motorised bar stool.  Staying with the American theme, apparently adultery is still a crime in some states in the US, although the severity of the offence seems to vary on the state.  If you must put asunder that what God has brought together (Matthew 19:6), it’s probably better to do it in Maryland where the maximum sentence is $10 as opposed to Michigan where you could get a life sentence of  a very different nature. I can almost understand where they’re coming from in Michigan, if the state really has to interfere in private citizens’ lives at least do it properly.  But $10?  Does this indicate that state legislators in Maryland really don’t value marriage as an institution that highly?  I’d be interested to know what fine I’d get for dropping litter or walking on the cracks in the pavement – 5 years hard labour?  John reports that us modern and enlightened Limeys abolished adultery (as a crime) in 1857. Cue unpleasant sense of smug superiority.                     

 I recommend a read of John’s review of 2009 and, perhaps more importantly, Old John’s Almanac for 2010.  His prediction that Tesco will start offering divorces by May has been trumped by the news (also on Family Lore) that Wikivorce   (“the world’s largest online support community”) has launched DivorceSupermarket.com .    The site will allow people to compare the cost of divorce services from a no-frills DIY service costing £69 up to a full “solicitor managed divorce” at £249.00.  As any divorce lawyer will tell you, it is not the divorce element of marital breakdown that takes the time or costs the money, it is arguing over the division of assets and/or the children that causes the real pain. My prediction is that someone will launch a website, along the lines of TripAdvisor, not restricted to divorce law, comparing solicitors and covering all types of “private client” law within the year.                     

 Miles cycled to/from Waitrose: 6                     

 Minutes spent queuing in Waitrose: 240                     

 Chargeable time wasted queuing in Waitrose: not recorded                     

 Brian Inkster of Inksters Solicitors in Glasgow is also a member.  He blogs and tweets on property law,  but also has a blog devoted to raising funds for charity, called InkstersGive.  The festive season, or what is left of it, is a good time to review Brian’s blog and to remember those less fortunate.  In November Brian and his wife went to Argentina to do something real and helped build houses for families living in poverty, as part of the Habitat for Humanity programme.  He blogged on the work they did in the 22nd de Enero neighbourhood, which is 24kms from the centre of Buenos Aires, but three hours (!) travel. He got involved in serious building work, like building a wall, and more mundane stuff like painting walls.  I was inspired by the personal commitment he and his wife made in pursuing a very challenging project.  This also included learning Spanish (although Brian is still struggling with English grammar apparently and as a filthy sassenach I daren’t make any further comment) as well as leaving their own comfort zones well and truly behind.            

You want to complete when?

 Brian is a keen user of Twitter and used it to raise money for the Argentine challenge. Have a read of this post if in any doubt about the usefulness of Twitter.   His was the first Scottish firm to post a tweet and now they have several channels devoted to different aspects of their practice and to differentiate between the firm and individual members of it. Brian   recently reviewed Adrian Dayton’s new book Social Media for Lawyers: Twitter edition  on how Lawyers can use Twitter to promote their business.  His review was very timely as I had been thinking about buying the book but was put off by the steep price.                     

 Percentage increase of newspapers actually read over the holiday versus newspapers purchased and then left untouched in rucksack during the working week: 95                     

 Number of bricks laid over Christmas, seasonally varied: 0                     

 Number of paths covered in snow and then cleared: 2                    

Chipping Sodbury - looks bloody cold

 Moving on through snow and frosty weather,  I can’t think of  a better place to visit than Clutton Cox Solicitors, who describe themselves as                      

“a small but perfectly formed law firm located in downtown Chipping Sodbury, near Yate, South Gloucestershire, at the southern edge of the Cotswolds.”                      

It sounds like an idyllic sort of place – five pubs, a “magnificent sausage shop”, a bakers and the best value greengrocers on the planet. Stacey Sady at the Beauty Clinic will help you plan your attack – on whom or what is not revealed and probably for good reason.  Cluttons don’t do criminal work.  Their principal is Paul Hajek whose ambition in life is to outlive the DFS sale and see Spurs win the Premiership in the next 80 years.  I think the first is highly unlikely and, as an Arsenal fan, the second highly undesirable.  A tall order in both respects, I think.                      

 Cluttons’ blog covers areas of practice relevant to them and I liked their post on the case of Jarndyce v Jarndyce.  Will disputes are on the rise apparently, but the courts are becoming readier to depart from the black and white of the Testator’s intentions in order to achieve the right solution.  The post refers to the daughter who cared for her parents for 30 years, only for them to leave their valuable farm to the RSPCA after the mother died.  The daughter won her claim to overturn her mother’s will at first instance, although the RSPCA are appealing. I’ll await the eventual verdict with interest.                      

This looks nothing like my office

 The William Flack blog, news from the front line of social welfare law, thankfully highlights that not all lawyers are like Mr Tulkinghorn of Bleak House fame. Two short YouTube videos featuring Maureen’s and Sandra and Robert’s stories relate how lawyers working in Law centres provide an invaluable service to many people without means.  Surely the central challenge for lawyers in private practice over the next ten years is to find a way to provide a service to clients in these areas of law whilst making a living?  Once upon a time there was a way and it was called legal aid …           In another post, William tells the story of one woman who needed legally aided immigration law advice in London - she couldn’t find anyone.  Will Tesco Law be any better at servicing these clients needs?                          

 Number of visits made to Tescos this Christmas: 0                     

 Francis Davey is a barrister specialising in IT, media and internet law.  In his last post before Christmas he wrote about the dangers posed by section 11 of the Digital Economy Bill, a piece of legislation that potentially gives the government power to restrict people from accessing the internet and could be used to prevent wikileaks “and squeeze web tv”.  The Digital Economy Bill is aimed at peer-to-peer file sharing, but Francis highlights that if this provision is passed unamended the Secretary of State will acquire a very wide-ranging power over accessing the internet.         

The Wirral - in case you didn't know exactly where it was

Peninsula Lawyer, subtitled Law, Social Media and legal IT from the Wirral, is written by Jon Bloor.  On December 18 he got properly into the festive spirit by attending his son’s Baby Sensory party, which involved thirty babies bouncing on inflatable horses.  The experience clearly traumatised the poor man so much that he started musing on the benefits of thinking positively.  He isn’t going to take an inflatable bouncy horse into his office though.  My guess, having just spent the last week and a bit off since Christmas Eve, is that all attempts at positive thought will have evaporated by lunchtime on the 4th January, or perhaps I’m just a miserable pessimistic sod.  The one thing that I will cling to is the thought that at least I don’t have to look after thirty babies on inflatable horses or any other contraption all day every day: that would be truly stressful and I have no idea how the ladies at my daughter’s nursery do such a good job with such good humour.  I like Jon’s blog and I found his post on hourly rates  - hourly billing drive quality? - really thought-provoking. The writing is on the wall for hourly rates, in my view and Jon’s article sets out succinctly why that is the case.                       

 Number of kids’  parties attended since December 10th: 3                     

 Number of visits to Santa’s many and various grottoes: 3                     

 Number of visits from Santa: 2                     

 Number of gifts received from Santa at parties that were subsequently lost: 2                     

Average time between child receiving gift and losing vital component thereof: 32 minutes        

A recent newcomer to the forum is Chris Sherliker of  London law firm Silverman Sherliker.  On 21st December he hosted Blawg Review #243 and took “Fighting Back” as his theme.  Very inspirational it was too once you got beyond the opening remarks;                    

“The Physical Universe tends towards chaos and dissolution …the Moral Universe towards injustice and despair ….the Legal Universe, for surely such a dimension does exist, towards obfuscation, misdirection and delay”        

There is, however, Light in the Darkness and Chris then  gets unapologetically Churchillian urging;                     

Hmm, not bad

 ”Let us, as lawyers, on the eve of the proximate festivities, at the threshold of another year, and as the destructive tide of the 2009 Recession begins to turn, celebrate and magnify all those amongst our number who, in the practice and profession of The Law,  … FIGHT BACK! … We will fight. We will fight back. We are fighters to the core. We have no choice. We must oppose to overcome. We will keep alive the intermittment spark of hope. Whatever the cost. However long and hard the fight may be.”                      

Quite so.      

For many lawyers in private practice the new decade promises many, many fights but thankfully none as dreadful as those faced by the troops on D-Day.  The challenge posed by Tesco Law looms ever larger – ABS’s become a reality next year.  Will it be a Big Bang or a damp squib? (or should that be damp squid? Is a dry squid better? Does anyone care?).  My money is on …  well, the meeting was cancelled because of frost.                       

Number of shirts not lost on horse racing: 1