I blogged last week on my forthcoming run for Cancer Research on 9^th October at Hatfield House.  Time for an update.

My training regime hasn’t been as dedicated as perhaps it should.  I haven’t got a sports watch so I’m not timing myself: at the moment my main concern is to be able to keep running without stopping over a reasonable distance.  Last night I went out after The Archers finished and got back around 7.45 p.m, so roughly half an hour’s running.  More encouragingly I  felt quite good doing it – normal breathing, no walking and I didn’t end up on all fours at the end. Progress!   I felt energised and could have gone for longer.  Possibly it was the fairy cake that my daughter had made that I ate about 5.45 that gave me the boost. No sports drinks here on this training plan:  this isn’t so much the George Best or Hurricane Higgins hard living approach to sport, more the Delia Smith diet.  It comes without a hangover afterwards and it might just work.  Whether I will shift the spare tyre on this plan remains doubtful and  I refuse to get on the scales.

I have also found two other benefits to running.  First, I bought myself an iPod shuffle but because of my failure to read the instructions or to comprehend the fiddly little control near the earphone, I am left with listening to much of the music I normally don’t select when I am in control.  Last night’s runI was inspired by Handel’s Messiah – perhaps not the obvious choice for running music.  It will also be a chance to listen to the podcasts I’ve got queued up but never quite get round to.

The second benefit is that it gives me time to think about blogging. I “wrote” this piece whilst running around.  Thinking about what to write is often the hardest part of blogging but running seems a great way of clearing the head.  Expect more training updates!

So running, gets you fit, reacquaints you with music you purchased ages ago and helps you write. Marvellous and unbelievably, I am multi-tasking. Girls are you impressed?

You can encourage my efforts by sponsoring me – it’s for Cancer Research – see the widget box on the top right of this page. Please!

Related posts:

1. Please Sponsor Me!
2. What is the cost of redundancy?

Keep on Running originally appeared on Jobsworth by Michael Scutt on 02/09/2010.

August marks the anniversary of when I started blogging. Two years have zipped  by since I put fingers to keyboard and, if I may, whilst on holiday and trying not to think about work, I’d like to take a look back and get all personal.

Necessity is said to be the mother of invention and so it was in my case.  I was writing a weekly newspaper article on law for the now defunct “Docklands” and wondering how to make better use of them.   After all, once a newspaper has been thrown away that material is lost.  Archant, the publishers had a website which published the articles online, but I wanted to take more control.  Initially, I thought about putting up a website  but that wasn’t really what I wanted.  I didn’t have much technical knowledge or have much idea about social media at all.  Looking back I can’t recall how I hit upon writing a blog: it just seemed to happen.  I started experimenting with Blogger and quickly realised I didn’t like its lack of flexibility or its look.  I  signed up to WordPress.com and found it much better – a much greater choice of themes and add-ons, although still quite limited particularly as you can’t use Google Analytics with it.  That was a major disadvantage and led me to move to WordPress.org and a self-hosted solution about a year ago.  I should have done it much sooner: self-hosting gives far more flexibility because you can use a huge variety of plug-ins to add extra functionality.  I’m not a programmer and nor do I have much technical understanding of what goes on “under the bonnet”, but I do enjoy tinkering around with plug-ins and widgets.  Blogging has certainly increased what IT knowledge I did have enormously.

I also wanted to raise my own profile and generate another source of work for Dale Langley & Co.  Rather naively I thought that once I started blogging the clients would just roll in.  Two years on I know that was unrealistic, the web doesn’t work like that.  I have taken on some very good work via people reading this blog and I receive regular enquiries about advice, all of which I am delighted to receive.    There is though a fundamental mismatch between promoting professional services on-line which are then delivered in the “old-fashioned” way i.e. by a lawyer charging by the hour, and the need for new ways of accessing legal information.  It’s not just about providing advice for free, but providing it at times and in ways that people want. Anyway, I digress.  I wanted to raise and extend my own profile and this I think I have achieved.  Thanks to blogging I’ve made contact with some great people also involved in social media – lawyers, consultants as well as clients. I’ve particularly enjoyed being involved in the UK Lawyers Network, which led to the UK BlawgRoundUp (#4 due out at Halloween hosted by @in_house_lawyer).

Another example of my naivety was in thinking that people would flock to the blog and leave lots of comments.  Again, it doesn’t seem to happen like that although I’ve been quite pleased with the level of comments and feedback that I have received.  Commenting on other blogs is something I don’t do enough of, mainly because of time constraints and  I guess that is true for a lot of other bloggers juggling work and family life.  I must do better!  I tend to write or read (other) blogs when on the train, or late at night.  One of the major impacts that social media has had upon my daily routine is that I now virtually watch no television nor read newspapers.  The former doesn’t bother me much, but the latter does as I have been in the habit (encouraged by my parents early on in life of the importance of reading a quality daily paper).  I worry that I am less well  informed now about current affairs than I was before I started blogging, which is bizarre given how much news is available on-line. This is one reason why I find Twitter such a useful tool – the really important news stories or the ones that interest me anyway, tend to get picked up by my network and I read about it in 140 characters or fewer.

Although I am an enthusiastic adopter of social media, I remain sceptical about it to  a degree. It’s a powerful tool to be used in promoting a business, person or cause.  In most cases it isn’t an end in its own right – it’s just a very powerful method for keeping in touch and, social media buzzword coming up, “engaging” with others.  It isn’t a method for making money in its own right unless you are telling other people how to make money from social media – those are the only people making money.  In my case I have been asked to give lectures, for which I have been paid, and have taken on new clients, who have paid professional fees to my firm, but blogging, as such, hasn’t made me money.  I would think that is true for the majority of bloggers. Agree?

My biggest frustration with blogging is that the less time I spend on a piece the more attention and RTs it seems to get on Twitter!  Very odd, especially when we’re always told  ”Content is King”: how can you plan to produce the best content you possibly can when blogs rushed off almost on a whim do better?

The other big frustration is not having enough time to blog and my aim (as ever) is to write more frequently.  I admire John Bolch who gave up practising law to write full time.  That’s a brave decision and not one to be taken lightly.  That is an increasingly attractive option for me, but Mrs Jobsworth might take some persuading.

Ultimately though, I think the best response  to the question “Why I blog” is a simple one: because I enjoy it and wish I’d started years before.  I hope you enjoy reading it as well. I’m always thinking of ways to improve this blog and I would very much welcome your views on what I am doing right, what I am doing less well or just plain wrong and what I can do to make it better.

Thank you for reading!

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Why I Blog originally appeared on Jobsworth by Michael Scutt on 24/08/2010.

Jobsworth in Training

Or, to be more accurate, please support Cancer Research, for whom I am running on the 9th October at Hatfield House in their 10k race.  It’s a worthy cause and I’m hoping that I can achieve the modest target of £250 to support their research into this dreadful disease.

I ran the City 5k race back in July and thought I should build on that.  I am hoping that the stimulus of raising money and publicising it via this blog and my Facebook page will keep me motivated during training: please help!

You can donate via Just Giving by clicking here. Please do.

Related posts:

1. Please sponsor Jill and Nicola

Please Sponsor Me! originally appeared on Jobsworth by Michael Scutt on 24/08/2010.

A survey by a firm of recruitment consultants has shown that more than 50% of employees admit to using social media during working hours. More than 33% claim to spend more than 30 minutes per day on “the likes of” Facebook, MySpace and Twitter during working hours, costing the UK up to £14 billion in “lost productivity”.  Click here for the report in Personnel Today.

I love these surveys – where do these numbers come from?  £14 billion – how is it made up? Is there any method or is it just a figure plucked from the air? Undoubtedly there is a risk to employers from the use (and abuse) of social media at work: I’ve written about it several times before.  But, these surveys make no assessment of the positive value of social media to employers.  Was all the “wasted time” purely incurred in Flossie arranging her social diary with Gertie?  Is it not possible she might have been tweeting about her employer’s business? Even if I am being naive, employers should consider drawing upon this expertise and use it to promote their businesses through social media.  Traditional ways of working are disappearing –  for instance, secretarial roles will slowly disappear as voice recognition systems allow documents to be typed straight from dictation without a human getting in the way.  Lawyers may well disappear as more and better online systems develop to explain people’s legal rights to them. Workers will need to be more flexible and there will be a greater need for all the various social media channels to be maintained.  Heaven knows I struggle to keep up with my blogs and I love writing!  Employers need to be channelling their employees’ usage of social media into positive ways of promoting their businesses. The answer, as I keep saying, is for employers to have a social media policy that sits within their overall social media strategy.

Related posts:

1. Why Employers need a Social Media Policy
2. Social Media in the Workplace
3. Constructive Dismissal: Good news for Employers?

Old News Rehashed:Employers Warned to Monitor Social Media Usage at Work originally appeared on Jobsworth by Michael Scutt on 07/08/2010.

Dumbledore - final salary pension scheme?

The Government announced last week that the Default Retirement Age is to finally be abolished from next year. This means that by October 2011 it will no longer be lawful for employers to demand that their employees retire at 65. The previous government announced it was going to review the issue last year  veryshortly before the final hearing in the Heyday saga (and did so probably to avoid losing the case and face).

It’s to be welcomed because people should be able to work beyond 65 if they wish. More to the point, with the increasing number of people living longer and most of us making inadequate provision for our retirement, as well as probably being saddled with mortgage and other debts beyond the conventional retirement debt, many of us will have no choice but to continue working. To that extent this isn’t a major liberalising move but a reflection on the fact that we’re in debt and not producing enough children to keep doing the work to raise the taxes. The default retirement age had to go.

The eternally useful magazine Personnel Today reported that the Government is claiming the move will actually save employers money – £45 million rising to £71 million per year apparently – mainly through there being fewer Tribunal claims from older employees claiming age discrimination. Personally, I’m not convinced by this mainly because it is the government’s estimate and they’re probably just trying to assuage employers. Secondly, claims for age discrimination will be replaced by older employees claiming unfair dismissal and age discrimination when the employer tries to terminate their employment on grounds of capability. On the other hand, HMRC will receive more tax revenues from continuing workers – £132 million per year apparently.

The current Age Discrimination rules apply the default retirement age of 65, but provide a procedure whereby those employees who wish to continue working can apply to do so. The employer doesn’t have to consent but, if they refuse the request they need to be able to justify the decision or end up facing a claim for age discrimination. From the proposals put forward now it seems that the employer will still be able to impose a compulsory retirement age but, again, will need to be able to justify it as a “proportionate means to achieve a legitimate end”. It will be a brave employer that does try to do so.

Dumbledore (above) needn’t worry – he’s probably got a Final Salary pension from the Ministry of Magic and, er, he doesn’t exist anyway.

Related posts:

1. Will you be made to retire at 65?
2. Heyday loses
3. Do Jobsworths wear moustaches?

Work ’til you drop originally appeared on Jobsworth by Michael Scutt on 06/08/2010.

The Metro newspaper reported on Wednesday how a student won £10,000 in damages from a former friend.  Raymond Bryce, a law student, failed to see the funny side of chef Jeremiah Barber’s post of a paedophiliac picture on his Facebook page with the words “ Ray, you like kids and you are gay so  bet you love this picture, Ha Ha”.  Bryce sued Barber in the High Court for libel and won damages.  Barber ended up with a large money Judgment against him, a conviction for circulating indecent images of children and 150 hours’ community service. This is yet another illustration of how some people seem to take leave of their senses when using social media.   What a thing to “joke” about!

Although this incident involved two private individuals, there is a lesson to be learned here for employers.  What would have been the situation had Barber been using his employer’s computer to access Facebook, or the offending comments had been placed upon a corporate Facebook page, or twitter account or blog?  In that situation the victim would probably sue both the individual who posted the comment and the company for not taking action: it is usually going to be more likely that the company can pay rather than the employee.  It is possible in law for a company to be held liable for the actions of its employees – it’s called vicarious liability –  so, for instance, the employer of a delivery driver who knocks over and injures a pedestrian whilst on his rounds will be sued alongside the employee driver.  If that is the case for a driver, why not for an employee who posts inappropriate material whilst at work?  One answer would be for the company to argue that the employee was not acting in the course of his work duties that he was, in the phrase beloved of lawyers, “on a frolic of his own”.  The law isn’t that simple though.

Is Theo right?

The case of Lister & Ors v Hesley Hall Ltd [2001] UKHL 22 dealt with the issue of vicarious liability and when it will be appropriate to place liability upon the employer.  The House of Lords held that the employer could be held liable for the action of an employee where it was held that the employer should be held vicariously liable where the act complained of is reasonably incidental to the type of business carried on. In the later case of Dubai Aluminium Co Ltd v Salaam & ors HL 2003 IRLR 608, Lord Nicholls said that for vicarious liability to be established the act complained of

“must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm’s business or the employee’s employment”

This should protect an employer in the Bryce – Barber type scenario above.  If an employee posts inappropriate material on his own PC in his own time that should not impact on the employer unless the company is specifically mentioned or linked in some way.  However, what about where the employee is authorised by the employer to tweet or blog or update Facebook etc to promote the business and the employee libels a third party? What about where the employee is home-based? The company may well be held liable and could end up with a nasty bill, which may not be covered by employers’ liability insurance.

What should the prudent employer do to minimise such risks?  The answer is to put in place a social media usage policy which sets out what is acceptable and what is not. This should include a prohibition on disseminating any indecent or pornographic images or text. It should also state that the employer will not tolerate any misuse of its social media networks that would breach the confidentiality of it or its clients or cause embarrassment to them.

There is no reason why that restriction should not extend to employees’ use of social media in their home life. The policy should make it clear that any breaches of the policy will be treated very seriously and may constitute a disciplinary offence leading to dismissal for gross misconduct.   This will enable an employer to argue, should the need arise, that the employee was not authorised to make the comment.

Furthermore, the employer should monitor their networks to make sure any offending articles or comments are removed as soon as possible.

Having said all the above, I don’t agree with Theo Paphitis.  Facebook and other social media tools are becoming increasingly important as marketing and communication tools.  Removing them from the workplace isn’t the answer: educating employees on correct usage is.

If you need any assistance with any of the issues raised in this piece, or would like to draw up a social media usage policy, then please do get in contact with me via michaelscutt@dalelangley.co.uk or on 0207 464 8433

Related posts:

1. 40% of UK Employees Criticise Their Bosses on Facebook and Twitter
2. Why Employers need a Social Media Policy
3. Old News Rehashed:Employers Warned to Monitor Social Media Usage at Work

Facebook “Joke” Turned Sour: Why Employers Need To Take Note originally appeared on Jobsworth by Michael Scutt on 30/07/2010.

Are you sitting comfortably? It could be the death of you… especially if you are an office-based woman

By DAILY MAIL REPORTER

I was very interested to learn at the weekend, from no less an authority than the Daily Mail, of a potential new type of claim that could be made against employers.

In the article published on Saturday, the Daily Mail reported that a research piece published in the American Journal of Epidemiology revealed that sitting down was bad for you – particularly if you’re a woman.

According to the report;

“Women who sat for more than a six hours a day during their leisure time were 37 per cent more likely to die than those who sat for fewer than three hours.”

This is hot stuff – it refers to the risk women run if they sit around in their leisure time (Mrs Jobsworth scoffed at the very concept), but if that is so dangerous, surely there must be an even greater risk of dying if women sit around at work?  As the article implies that women who don’t sit around in their leisure time won’t die at all, this must mean that cruel heartless employers are exposing their sedentary workers to the risk of dying – that must be grounds for constructive dismissal? To avoid claims arising employers should instal treadmills or make employees do press-ups and running on the spot for at least five hours per day in order to reduce the risk of litigation. There’s a claim there and I bet the claims farmers will be on to it in an instant.   I might even put up an ad myself.

I wouldn’t want to be that sub-editor.

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Sitting Down Might Kill You (especially if you’re a Woman) originally appeared on Jobsworth by Michael Scutt on 26/07/2010.

Now we’re getting into the silly season (following Midsummer Madness) and before the season of mists and mellow fruitfulness descend, my thoughts have been turning to those irritating features of work life that really annoy everyone.  The most obvious is that workplace institution that makes so many people cringe: the annual (or semi-annual) appraisal.  Has there ever been anything so universally privately detested that has so little positive value and yet it continues to exist in the majority of workplaces?  Lucy Kellaway, writing in The Financial Times last week argued that they serve no useful purpose and should be scrapped.

What actually is the point?  Appraisals, performance reviews, 360 degree reviews, call them what you will, they waste huge amounts of management time, both in preparation and the time spent in conducting the meeting. More often than not they are carried out badly and cause resentment on both sides: if they’re meant as a communication tool, seeking to inform the employee of the business’s aims and wants they’re a poor method.  If intended to motivate employees to greater and greater achievements, they usually fail.  Does anyone ever come out of an appraisal feeling genuinely lifted, motivated, inspired or enthused?  Or is it just “phew, that’s over for another year”?

So, what is the purpose? Is it to give the impression that the employer is actually communicating with its staff, or even that it cares about them? Or is it to give HR something to do? I’d welcome any comments, especially from people who actually think appraisals serve a useful purpose.

I’d really appreciate your thoughts and feedback on this subject.  if you have time, please take part in the poll below. The question is “”

I look forward to your feedback and before anyone asks, no we’re not doing appraisals at my firm at the moment.

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Appraisals: What’s the Point? originally appeared on Jobsworth by Michael Scutt on 22/07/2010.

Madness by Rogier Van Der Weyden

When I initially thought of the theme for this round up the country was in the grip of travel chaos caused by an unpronounceable Icelandic volcano and BA cabin staff threatening to go on strike.  That’s all quiet now (for the time being) but midsummer madness abounds elsewhere, not least with the ritual post-mortem into England’s latest failure at the World Cup. Andy Murray gave Wimbledon his best shot but was found wanting. The druids, hippies and other odd-bods who really ought to have jobs to go to gathered at Stonehenge to celebrate the summer solstice and, perhaps, to mourn the likely continuing lack of a decent visitor centre serving a palatable vegetarian option.  Judging from the submissions received at blog carnival for this edition, some people misunderstood the nature of the RoundUp.  I could have included items such as “top 12 Fireman pin ups of 2010” or “10 great web resources for photographers” had they not been obviously spam.  More evidence(not that it is needed) of the madness of spam.  Why do it?

It would probably be more accurate to describe the build up to the World Cup as a fever rather than insanity, although anyone who really thought it would be different this time round is probably certifiable.  St George flags everywhere, pubs full, offices empty, lots of articles about how employers should protect their businesses from absenteeism, drunkenness and discrimination (ahem, yes I wrote one too).  To cap it all there was even Brian Blessed doing a good impression of Brian Blessed reciting the famous bit from Henry V:  “Cry God for Fabio England and St George”, before our gallant lads took on the might of, er, Slovenia. Not exactly an Agincourt moment, albeit I’m sure Shakespeare could have written a decent tragedy over the continuing failure of the England team to make a decent impact on the world stage.  I wouldn’t want to blow my own vuvuzela too much, but I could see it coming (who couldn’t?).

Til death us do part, or something better comes along

Aside from football lunacy, gadget lovers were gripped by the long anticipated release of Apple’s iPad, followed a few days ago by the sale of the iPhone4.  People queued and camped to get their hands on these devices. The airwaves and newspapers were full of it, Bloggers blogged about it, people even used them.  Peninsulawyer, who tweets as @beej777 has been writing about the iPad so much he’s set up a feed on Posterous just to cope with all his posts on the subject. He’s even being writing about other lawyers who’ve been writing about the iPad. Degrees and theses on the iPad are probably being prepared as we speak.  Peninsulawyer  is an invaluable source of information if you wonder whether the iPad is for you. He wrote a couple of very interesting articles on it called the iPad Lawyer, where he road tested the one he had just bought and considered how useful it would be for a practising lawyer. It’s undoubtedly a great looking and clever bit of kit, but Jon’s conclusion that it is better for consuming media than creating it means I probably won’t be flexing the plastic just yet.  Jon suggests that there is still a role for a netbook (upon which this is being written).

Furthermore it might be difficult to justify the purchase to Mrs Jobsworth, who is a confirmed Luddite.  Had Shakespeare been writing it the conversation might have been like this;

J: My dear, I am desirous of acquiring this new iPad that everyone is raging about

Mrs J: What folly dost thou propose now! What need hast thou of an iPad?  Thou already has a laptop, a netbook, a Blueberry and Lord knows what other pointless gadgets – what reason has thou for more electronic fripperies?

J:   O reason not the need! Our basest beggars
Are in the poorest thing superfluous.
Allow not nature more than nature needs,
Man’s life is cheap as beast’s.

Mrs J: Where’s the handbag you promised me for my birthday?

J:  You think I’ll weep; no I’ll not weep: I have full cause of weeping …”

And so on.  I will be keeping a close watch on Peninsulawyer’s posts on the subject to see how he gets on with it in future.

Scholars discover evidence (above)  that Shakespeare thought of the “Big Society” first.

Mrs Jobsworth thought the cartoon below  particularly pertinent, but I can’t think why.

Perhaps what I need is to be found inside Melanie Hatton’s Essential Toolkit for the In-House Lawyer: a magic wand. This would come in handy for many lawyers in private practice as well as for those working in-house. Melanie blogs as “In-House Lawyer” and I particularly enjoyed her blog post on this subject.  In addition to her own three essential items she asked her twitter followers to suggest additional items to go in.  That her respondents, all of whom are in-house counsel, felt the need for a “ten minute” gun which would kill someone for 10 minutes and an effigy of a sales manager into which pins can be stuck suggest to me that being an in-house lawyer may not be quite the verdant green field that lawyers in private practice sometimes mistake it for.  On the other hand, why only 10 minutes?

Melanie also wrote an earlier piece on the use of social media in the workplace, which is a topic I’ve written about on this blog before. She refers to a symposium for lawyers that took a different view on social media and presented it as an opportunity and not the threat that many perceive.  Any seminar that asks whether Abraham Lincoln would have used Linked In or Tweeted must be worth going to (click here for some more on this topic) .  That choice of politician, of course, hints at the sub-text here: it was an American symposium and Melanie’s article flags up why I set up this RoundUp in the first place: social media is much more understood amongst lawyers in the US than here.  Melanie sums up her philosophy thus;

“I’m very keen for lawyers to be seen as accommodators and team players, rather than as red-tape and obstacle creators, and so in my experience social media has been a perfect tool for all of us (in-housers and private practice lawyers) to engage with colleagues and clients on that level.”

Tessa Shepperson continued the theme of the utility of social media at her Solicitors Online Blog with a three part series of articles entitled Social media: what’s the point? .  In her third article the answer can be summarised as “communication”.  For anyone not sure about the advantages that social media can bring to a business the whole series is well worth reading, especially as Tessa has proved the point with the growth of her business.

It won't help Iceland's carbon emissions

How she finds the time to actually work as well as enhance her social media profile astonishes me.  She always seems to have a new project on the go and the latest is the blog she has set up for the Independent Law Network, a forum for sole practitioners in Norfolk.  Whilst Tessa is a specialist in landlord and tenant law, other group members practice in different areas, including Sally Davenport who, back in April, wrote a useful piece on the issues facing employers and employees alike when stranded abroad by rogue clouds of volcanic ash.

Tessa also reminded me of the merits of another blog I mentioned in the first of these RoundUps: NearlyLegal, which deals with housing law.  It’s very much a case reporting service and although I have little need to be interested in that area of law myself, I did find the article “An Offer you can refuse” on Part 36 offers very interesting. A Part 36 offer is a specific type of offer used in English and welsh civil litigation which imposes costs penalties on the other party if they don’t do as well in court.   Unlike most other offers to settle, a Part 36 offer remains open for acceptance even if the offeree has already rejected it.  More madness?  Perhaps, but the purpose of Part 36 is to promote settlement.  If as the offeror your Part 36 offer is not accepted it must be withdrawn otherwise the offeree may change their mind and come back for it later on.  NearlyLegal provides good concise reporting of cases and thoroughly deserves the number of visits it receives.

A welcome should be given to Gillian Bishop of Family Law in Partnership LLP who is new(ish) to blogging and devoted her first piece to a series of tips for finding the right divorce lawyer.  Hopefully I won’t be needing to heed the helpful advice she gives when I do finally succumb to iPad fever, but it is the sort of article that demonstrates how useful the internet can be.  Finding a lawyer may be a daunting experience for anyone, especially if their life has just been turned upside down when their marriage falls apart.

Mark Smith at The Intelligent Challenge submitted his entry to BlogCarnival saying “eek, I’d never realised the UK blawg scene was so vibrant”.  It is and getting more so.  He brought to my attention his thoughts on what to do with a generous pecuniary birthday present, especially if the recipient was a law firm seeking external investment after ABSs come into force from October 2011.  This is a subject that takes up a good deal of opportunity/threat aspect of the Legal Services Act.  His piece asks what law firms would spend the money that private equity would introduce on.  I doubt that this is the right question for all but a handful of large, already systematized firms.  The more pressing question is whether private equity is actually interested in investing in law firms.  An edition of the Law Society Gazette a couple of weeks ago reported that Jon Moulton, the well known venture capitalist, was distinctly underwhelmed by the prospect of investing large sums in a law firm.  I hadn’t come across Mark’s blog before and I’m glad I’ve found it – especially his recent piece on Superhero lawyers.

The other aspect of the Tesco law debate focuses on the issue of brand entrants into the hitherto protected world of legal services and nothing has brought that debate into sharper focus than the advent of Quality Solicitors. Over at the Law Society Gazette’s Linked In discussion page a very active discussion has been taking place on the effect of Alternative Business Structures on High Street firms.  I was delighted when Rory MccGwire, the founder of Law Donut, wrote a guest post on my new blog There May be Trouble Ahead, on this very subject.  Rory’s view is that “brands WILL soon emerge in the legal services market. The interesting question is: which brands will prevail?”.  It then provoked some good responses, including from Craig Holt of QS himself.  As every blogger knows, getting comments to articles – engagement – is the Holy Grail.  Thanks Rory, I’ll be inviting you back.

Enough of the Legal Services Act for now, time for some light relief.  Brian Inkster provided that with his post on Scott Greenfield wearing the Inksters Give T-shirt, promoting Brian’s fundraiser for the Argentinian charity project that I mentioned in my last RoundUp. Inskters blog also has photos of various people and family wearing the T-shirt (I bought one but modesty prevents me from posting a photo  of my gym-honed torso on this blog).  Scott, a New York criminal defence lawyer, writes the Simple Justice blog.  Strictly speaking it is outside the remit of this RoundUp because it isn’t about the UK blogging scene, but I was struck by his piece on the recent 50^th anniversary of the novel To Kill a Mockingbird, by Harper Lee, entitled “You’re not Atticus Finch (and neither am I)”. Hear, hear.

Back across the pond Brian Inkster has also been writing regularly about crofting reform.  On his blog he gave his Views on Crofting Reform (Scotland) Bill which summarised his submissions to the Scottish parliament. The Bill seeks to address the problems of absenteeism and neglect on crofts. Brian also followed that up with an article at The Firm Online, for whom he writes frequently, on the question of Should a Crofting Mortgage Bill be introduced?  I’m going to display my ignorance by saying that I know virtually nothing about crofting and Brian’s articles have helped to correct this to some extent.   I had no idea that you could not get a mortgage on a croft, although I can see that if there were no restrictions in place, the Highlands would see an influx of holiday homes and the destruction of crofting as  a way of life.  On the other hand, again at risk of demonstrating my ignorance, is crofting a viable institution for the 21st century? I can’t think of many harder ways to earn a living and it must be very difficult to persuade younger people to remain or move into the communities.

Time to mention Law Donut.  It’s an excellent site containing a wealth of useful material on most aspects of business law. There are section son credit control and recovery, disputes, IT Law and Data Protection and Employment Law.  There’s also an excellent blog (shameless plug, but so what) covering various issues of employment law.  Well worth a read and not just because I’ve written one or two pieces.  The Law Donut is now joined by the Marketing Donut, IT Donut and Start-Up Donut.

Finally, I note Geeklawyer is back following some technical difficulties.  Back in May he blogged about The Times’ mad decision to impose a paywall on its online material. One effect of this was to force BabyBarista to jump over the “prison wall”, as Geeklawyer termed it.  The newspaper expected it to reduce its online audience by 90% but still thought it could make money.  I, for one, hope it doesn’t catch on.  Geeklawyer asks what effect it will have on writers, who may find their work not getting the circulation (and thus the recognition) that it might previously have received before the paywall went up.

Right that’s it for this edition.  I’m off to read Lord Mandelson’s memoirs which reveal, apparently, that Tony Blair thought Gordon Brown “mad, bad and dangerous beyond redemption”.  And they ran this country for 13 years.  Madness.

No related posts.

Midsummer Madness originally appeared on Jobsworth by Michael Scutt on 21/07/2010.

For an employee who has decided to move on to pastures new and has handed in his/her notice, or has been told they are to be made redundant, there are certain pitfalls to be avoided. They may seem obvious (like serving notice), but people still fall foul of them. Walking out there and then is a big step for an employee – we’re in constructive dismissal territory here and legal advice should be taken  before you do it. In other cases some employees only have regard to the restrictive covenants in their contracts of employment (which are the clauses that say the departing employee won’t try to solicit work or custom from the clients he’s been dealing with, or prevent him from joining a competing business once he’s left).  Whether those restrictions are always legally enforceable is another matter and constitute another material for another blog post or three, but in this post I want to highlight for employees that trying to get ahead by taking confidential information, or by acting inappropriately whilst stil an employee (even if on garden leave) could end in tears.

The basic common law position is that all employees owe a “duty of fidelity” to their employers whilst they remain employed and to breach it may be a serious matter, even justifying dismissal for gross misconduct. This comprises several specific duties but the three main ones are ;

1. Duty of Confidentiality – It sometimes happens that when an employee is thinking of leaving their job they take some liberties with the employer’s confidential information, such as downloading the client database or copying confidential information.  Don’t do it: every employee owes his/her employer a duty of confidentiality, which may be expressly stated in the contract of employment/staff handbook or implied under common law
2. Duty not to Compete -  Don’t start working for another business, whilst still employed by current employer.   This situation should not be confused with restrictive covenants preventing the employee from dealing with or working for a competitor for a period of time after the employment has terminated.  Restrictive covenants can be difficult to enforce and will only be enforceable so long as they seek to protect an employer’s legitimate economic interests because the courts view them as being a restraint of trade.  However, before the employee actually takes his leave he should not be competing with his employer.  That is a breach of the duty of fidelity and, if the person concerned is a senior employee or a statutory director of the business concerned it may be a breach of fiduciary duty (“utmost good faith”).  That will be a disciplinary matter and, almost certainly, gross misconduct, leading to dismissal without notice pay and, quite possibly, a reference. The above all applies even when the employee is on garden leave. They’re still an employee even if they’re not attending the workplace or doing any work.
3. Duty not to Act against the employer’s best interests – ie not to act in Conflict of interest -  not whilst still employed.  The duty of fidelity requires the employee not to act in a way that damages the employer and, furthermore, requires the employee to notify the employer of his (and other employees’) wrongdoing. There is also a duty to report approaches from competitors.

How can an employer protect themselves?  The answer, as ever, is to have a properly (and professionally) drafted contract of employment that expands upon the various duties above and makes it quite clear what employees can and can’t do during employment.

So, this is all fairly straightforward, but can an employee prepare to compete? In other words can an employee take steps whilst in employment to prepare his own business when he leaves? Is buying an off the shelf company a breach of the duty of fidelity, or having stationery printed? It has always been the case that an employee can prepare to compete, but the recent case of Shepherds Investments Ltd v Walters [2006] EWHC 836 suggests that might not be quite so straightforward now.

I’ll deal with that in my next post.

Related posts:

1. Contracts of Employment: what you need to know

Leaving your job? Three things not to do before you get your P45 originally appeared on Jobsworth by Michael Scutt on 22/06/2010.