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!

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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.

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

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.

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.

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

Cereal Litigants?

There’s no need to resort to garlic, holy water, crucifixes, or rosary beads to keep them away (we’re not quite in Bram Stoker territory yet) but there’s no doubt that serial litigants are a blot on the ET landscape.

Following on from my previous posts on the subject, there was some good news a few weeks back in the EAT on the issue of what a claimant has to prove to succeed with a claim for age discrimination.  The case of Keane v Investigo & others UKEAT/0389/09/SM, commented upon by Gordon Turner and Damian McCarthy in ELA Briefing last month[1], held that a claimant has to prove a genuine interest in performing the job advertised.  There can be no detriment to an unsuccessful applicant if they had no interest in doing the job in the first place.

This decision may make it easier for employers to get these types of claim struck out.  It will be necessary though to demonstrate that the Claimant has no genuine interest in the job and has a history of other unmeritorious claims because the ET is not quick to strike out. Factors to consider might include whether they had made applications for similar jobs, where the jobs were based, did the claimant have any background in that area as well as whether they are suitably qualified for the job and did they follow their application up or did they just rush off to the ET as soon as they were turned down.   Serial litigants won’t go away, but they may well find their business model has just suffered a big dent.

Gordon Turner tells me that the Early Day Motion in Parliament, called before the election, criticising his Serial Litigants website, did not get enough support.  It is to be hoped that the new government might take a fresh look at the whole serial litigants issue and consider what practical steps can be taken to stamp this abuse out.

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How to Deter a Serial Litigant originally appeared on Jobsworth by Michael Scutt on 16/06/2010.

Jobsworth isn’t averse to football; in fact, quite the opposite.  I shall be following  the travails of the England football team as keenly as anyone. it’s just that  I have just found other things to write about on this blog.  However, over at the Law Donut blog I did contribute my thoughts on the employment law challenges posed to employers during the forthcoming festivities. which include absenteeism, drunkenness, racist abuse – all in the name of sport. Can’t wait for the Olympics. Marvellous.

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The World Cup: The bandwagon’s out of control originally appeared on Jobsworth by Michael Scutt on 10/06/2010.

I'm not trying to be a "cool grandad", really I'm not

If you have ever had to sue someone else and gone through the courts or Employment Tribunal, or if you have been asked to sign a compromise agreement upon the termination of your employment, it’s pretty likely that at some point the words “without prejudice” will have cropped up, followed (perhaps) by “subject to contract”.  They can be baffling and many clients ask me what “without prejudice” means when I’m taking them through a compromise agreement.  One client once asked me to write a letter to the other side “with prejudice”.  Many people, lawyers and non-lawyers alike, write the words “without prejudice” on all their correspondence in the hope (presumably) that they will act as some kind of Harry Potteresque invisibility cloak to stop their words being thrown back at them in court.  It doesn’t always work.

What does it mean?

Basically it’s a mechanism that allows one party in a dispute to put an offer of settlement to the opponent without risk that that offer will be used in court against them as evidence that they were liable for the dispute all along. It only applies provided that the offer is a genuine attempt to settle a dispute of a legal nature or litigation.  The words “without prejudice” act as a shield to allow “behind the scenes” negotiating and is a form of what lawyers call “privilege” (meaning privileged from publication).

It’s a doctrine that’s as old as the hills, but crops up in the law reports fairly regularly as one party or another to a dispute tries to widen or narrow the scope of the rule.  The recent case of Woodward v Santander [2010] UKEAT 0250_09_2505 was a case in point and provided a reminder that it won’t protect all communications hiding behind it.  Without Prejudice won’t cover up acts of “unambiguous impropriety”, which would include acts of blackmail or perjury and Woodward confirms that is still good law, albeit the “unambiguous impropriety” has to be pretty clear cut.  Woodward was a case based on discrimination and Mrs Woodward had sought to argue that the unambiguous impropriety exception should cover discrimination.  The EAT rejected that.

“Subject to Contract” is a similar type of provision, most often cropping up in property or other transactions, to ensure that neither party will be bound by the terms of the draft contract until it has been signed by all the parties and is only then legally binding.

Here endeth the lesson …

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What does “Without Prejudice” mean? originally appeared on Jobsworth by Michael Scutt on 04/06/2010.

Barrister and writer Tim Kevan has withdrawn the BabyBarista Blog from The Times in reaction to their plans to hide it away behind a subscription-based paywall. He commented: “I didn’t start this blog for it to be the exclusive preserve of a limited few subscribers. I wrote it to entertain whosoever wishes to read it.” The re-launched site is at www.babybarista.com and includes numerous cartoons of the blog’s characters by Times cartoonist Alex Williams.

By way of background, BabyBarista is a fictional account of a junior barrister at the English Bar. The stories he tells appeared on The Times for over three years and they also led to him getting two book deals with Harry Potter’s publisherBloomsbury. BabyBarista and the Art of War was published as a trade paperback last year and was described by broadcaster Jeremy Vine as “a wonderful racing read – well-drawn, smartly plotted and laugh out loud” and by The Times as “a cross between the talented Mr Ripley, Rumpole and Bridget Jones’s Diary”. A mass market edition with the new title Law and Disorder is due out in August. Book Two of the BabyBarista Files will also be published by Bloomsbury. The provisional title is Law and Peace and although a date hasn’t been finalised it is likely to be published in 2011.

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Baby Barista Resigns from The Times over their Decision to Charge originally appeared on Jobsworth by Michael Scutt on 28/05/2010.

This is a question that we often get asked – by both employer and employee clients – when facing disciplinary or grievance meetings.  Recent case law has provided some guidance on it and I covered the subject in my first post on the Law Donut blog.  Click here to read it.

The Law Donut website and blog is an excellent resource for SMEs seeking legal comment and information on a wide variety of topics, not just employment law.  Do have a read of it.

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Can My Employees Secretly Tape a Meeting With Me? originally appeared on Jobsworth by Michael Scutt on 06/05/2010.