Guest Post: Unwanted social media comments could render employers liable for unlawful harassment

Unwanted social media comments could render employers liable for unlawful harassment

The case of Otomewo v Carphone Warehouse Ltd, ET/2330554/2011 demonstrates that employers may be liable for unlawful harassment under the Equality Act 2010 if employees bully a colleague because of a protected characteristic on social media.

In the case of Otomewo v Carphone Warehouse Ltd, ET/2330554/2011 Mr Otomewo, who was a manager at a Carphone Warehouse store, had his mobile phone taken by two employees, who posted a comment on his Facebook status update as follows: “Finally came out of the closet. I am gay and proud.”

Mr Otomewo subsequently complained about the Facebook comment and was later dismissed by Carphone Warehouse because of (unrelated) allegations of sexual harassment that had been made against him. He subsequently brought an Employment Tribunal claim for sexual orientation harassment, direct sexual orientation discrimination, direct sex discrimination, and unfair dismissal.

Mr Otomewo – who is not gay and whose colleagues knew he was not gay – gave evidence at the Employment Tribunal merits hearing that he had been “embarrassed” and “distressed” by the Facebook comment as it could be seen by his family and friends. The Tribunal, in its Judgment, described the actions of Mr Otomewo’s colleagues as an “unnecessary and unwarranted intrusion into his private life on public space”.

The Employment Tribunal found that Mr Otomewo had been harassed on the grounds of his sexual orientation harassment as he had been subjected to unwanted comments related to sexual orientation which had (the Employment Tribunal accepted) the effect of humiliating him. Following on from the judgment of the Court of Appeal in Edwards v Thomas Sanderson Blinds Limited [2009] IRLR 206 CA, protection from harassment extended to persons who were not, and were not believed to be, of a particular sexual orientation where the vehicle for bullying that person was sexual orientation as the purpose of the relevant legislation was to protect persons being harassed on the grounds of sexual orientation (whether this was imaginary or not).

The Tribunal also found that Carphone Warehouse were liable for the harassing actions of Mr Otomewo’s colleagues as Facebook status comment had been made by his colleagues in the course of their employment (as it had taken place at work, during working hours, and involved Carphone Warehouse’s management staff).

Analysis

The case of Otomewo v Carphone Warehouse Ltd, ET/2330554/2011 shows that employers can be liable for acts of unlawful harassment under the Equality Act 2010 by their employees on Facebook or other social media (if that harassment relates to another employee, and is communicated at work during work hours). Although policing employees’ use of social media at work may seem to be a potentially administratively burdensome for employers, employers can protect themselves from liability for harassment through a “s.109 defence” – by implementing social media and equality policies at work, and training their employees in those policies. Employers should also take swift action to investigate any complaints of harassment that are made in the workplace and to produce quick and fair outcomes to these (as employers risk potential constructive dismissal claims if they fail to do so).

Summary and recommendations:

  • Sexual orientation harassment can occur even if those carrying out the harassment know that the victim is not gay
  • Employers should ensure that they have a comprehensive and effective social media policy that makes it clear that bullying through social media could result in disciplinary action
  • Employers should thoroughly train their employees in their equal opportunities policies

Employers should make it clear that discrimination on the grounds of a protected characteristic (such as race, religious belief etc.) could occur even if the victim does not have the protected characteristic alleged by the perpetrator, and the perpetrator knows this

Chris Hadrill is a specialist employment solicitor at Redmans Solicitors and the creator of www.settlementagreementuk.com

Guest Post: Hit by an Uninsured Driver? Follow These 5 Steps for Making a Claim

Hit by an Uninsured Driver? Follow These 5 Steps for Making a Claim

March 2014

According to the Institute for Advanced Motorists (IAM), more than 200,000 drivers on British roads have points on their licence for driving without proper insurance, a figure which equates to 1 in every 200 road users.

The figures, obtained by the IAM under the Freedom of Information Act, highlights the widespread problem and representatives stress how vulnerable it makes law-abiding road users and pedestrians to footing the bill for property repairs or personal injury costs.

Chief Executive of IAM, Simon Best said that “These findings are shocking. Those 200,000 individuals who drive whilst uninsured place the burden back on those who abide by the law through higher premiums and potentially the cost of vehicle repair.”

Whenever you are out on the roads, it is advisable to follow these five steps to protect yourself from uninsured drivers:

  1. If you are involved in a traffic accident, the law states that you must stop if there is any damage, no matter how minor, caused to personal property, vehicles, or street furniture like bollards or street lamps, or, if there are any injuries caused to other drivers, pedestrians or animals, regardless of who was responsible for causing the accident.

If you are involved in an accident with a vehicle which does not stop, do your best to note the registration, make, model and colour of the car and if possible, any details about the driver or passengers.

  1. When you stop after an accident, each party involved must exchange contact details with one another, including a name, address, details of the vehicle owner if that is not the person driving and insurance details.

If someone refuses to give you any of this information, you must report it to police within 24 hours and note down the crime reference number they give you.

  1. If anyone witnessed your accident, including passengers in your vehicle but in particular, passers-by or other road users who have also stopped, take a name and contact phone number from them. When it comes to making a claim, it helps to have as much evidence of the events as possible.
  2. When involved in an accident with an uninsured driver, you need to inform your own insurer and then make contact with the Motor Insurers’ Bureau. This organisation specialises in dealing with claims against uninsured drivers.

In simple cases where there is damage to property only, the service provided by MIB should be sufficient. However, if you or any of your passengers have suffered a personal injury, then your case becomes far more complex and it is wise to seek advice from a solicitor who can help to manage your case, both while putting a claim together and in court if necessary.

  1. Seek advice from a legal professional who specialises in road traffic law and personal injury claims who can manage your case and recover any costs caused by your accident. This includes property repairs or replacements, and compensation for personal injuries or a loss of any earnings caused by them.

The professional team at Accident Compensation 4U understand that being in an accident can be distressing, particularly when a claim is complicated by dealing with an uninsured driver.

Contact them for free expert advice and the legal support you need to successfully claim the much needed compensation you are entitled to.


Guest Post: Police Among Claimants Seeking Compensation for Workplace Hearing Loss

Police Among Claimants Seeking Compensation for Workplace Hearing Loss

February 2014

Research carried out by the Health and Safety Executive showed that more than 20,000 people across the UK reported suffering from varying levels of hearing loss after being exposed to excessive levels of noise at work.

Despite the fact that specific laws were introduced in 2006 under the Control of Noise at Work Regulations (2005) Act, which makes employers legally responsible for protecting the hearing of their employees, hundreds of new cases still continue to be reported according to medical specialists.

As an example of employer negligence, the Royal Ulster Constabulary (RUC) based in Northern Ireland, the only armed police force in the UK, is currently compensating thousands of its own police officers for failing to protect them with suitable ear protection when working with firearms. To date, the bill for compensation and court costs exceeds £135 million and is expected to rise as more former police officers wait for their workplace injury cases to be settled.

Ears are incredibly sensitive to noise, and when it is excessively loud or lasts for a long period of time, it can cause damage to the inner ear and result in varied levels of hearing loss or tinnitus. This kind of damage is known as Noise Induced Hearing Loss (NIHL) and is unfortunately permanent in most cases. The sensitive cells in the ear cannot heal or be medically repaired, although some treatments and hearing aids are available to manage the difficulties that hearing loss and tinnitus can present.

Sufferers of NIHL report experiencing difficulty hearing in one or both ears and describe sound as being muffled, only audible when they are of a particular volume or pitch, or in the worst cases, complete deafness.

The sense of hearing is precious and the loss of it can be absolutely devastating. Aside from coping with the physical symptoms, sufferers also describe feelings of depression and a loss of confidence, of difficulties staying in employment and of the stress caused by trying to survive financially while adjusting to these challenges.

Whilst it’s not possible to stop the workplace from being noisy, NIHL is completely preventable. By law, all employers have an obligation to protect you from workplace injuries and if you have experienced any form of tinnitus or occupational deafness in the workplace, you are entitled to be compensated for it.

Because hearing loss is usually a lifelong condition, it could mean considerable, long-term financial costs to you. This could include paying for specialist medical support and treatment, hearing aids and other equipment designed to alleviate the symptoms of tinnitus, not to mention the loss of earnings you may experience as a result of your workplace injuries.

If you have experienced occupational hearing loss, a personal injury lawyer can help you to calculate the amount of compensation you are entitled to. At Accident Compensation 4 UK, we offer free advice and guidance on the amount you are owed and if you decide to proceed with your compensation claim, we operate on a No Win No Fee basis so you don’t have the added worry of legal costs to deal with.

Same sex parenting

Same sex parenting

There are many options open to gay and lesbian couples who wish to start a family. Some have a yearning to have their own biological child and opt for co-parenting or surrogacy. Others, driven by a desire to offer a stable and loving environment to a child that is not able to live with their own family, choose to go down the adoption or fostering route.

Since 2002 it has been possible for unmarried couples, including same sex couples to adopt a child jointly. In 2007 another law was passed to make it unlawful for providers of goods and services including adoption and fostering services to discriminate against people because of their sexual orientation.

Eligibility

The prerequisites for any same sex couple to be eligible for adoption are exactly the same as a heterosexual couple. You must be at least 21 years old and although there are no upper age limits you need to be in good health. You also need to be a resident of the UK and not have any convictions for particular offences.

In spite of the changes to the law many gay and lesbian couples who would like to adopt have reported that they are not treated the same as heterosexual applicants. Some of these complaints have centred on the length of time it takes to be given a child in comparison to heterosexual couples. They have also reported being less likely to receive a baby in favour of an older child as opposed to  heterosexual couples. It is a good idea for same sex couples to consult a family law specialist such as Brookman Solicitors if concerned about being unfairly treated or discriminated against.

The Process

Couples can adopt through a local authority or an adoption agency and the application can be made through any local authority, not just the one in which the couple resides. A couples’ suitability for adoption will be assessed on whether or not they can provide a stable home through adulthood and beyond.

If you are in a relationship you can still apply for adoption as a single parent or you can apply with your partner. If you are applying as a couple the agency will assess how stable your relationship is and you will have to be able to demonstrate this.

Although local authorities are keen to find gay and lesbian parents willing to adopt, the process can be long and gruelling. If successful however adoption could be the most rewarding thing you ever do.

Guest Post: Same sex parenting

Same sex parenting

There are many options open to gay and lesbian couples who wish to start a family. Some have a yearning to have their own biological child and opt for co-parenting or surrogacy. Others, driven by a desire to offer a stable and loving environment to a child that is not able to live with their own family, choose to go down the adoption or fostering route.

Since 2002 it has been possible for unmarried couples, including same sex couples to adopt a child jointly. In 2007 another law was passed to make it unlawful for providers of goods and services including adoption and fostering services to discriminate against people because of their sexual orientation.

Eligibility

The prerequisites for any same sex couple to be eligible for adoption are exactly the same as a heterosexual couple. You must be at least 21 years old and although there are no upper age limits you need to be in good health. You also need to be a resident of the UK and not have any convictions for particular offences.

In spite of the changes to the law many gay and lesbian couples who would like to adopt have reported that they are not treated the same as heterosexual applicants. Some of these complaints have centred on the length of time it takes to be given a child in comparison to heterosexual couples. They have also reported being less likely to receive a baby in favour of an older child as opposed to  heterosexual couples. It is a good idea for same sex couples to consult a family law specialist such as Brookman Solicitors if concerned about being unfairly treated or discriminated against.
The Process
Couples can adopt through a local authority or an adoption agency and the application can be made through any local authority, not just the one in which the couple resides. A couples’ suitability for adoption will be assessed on whether or not they can provide a stable home through adulthood and beyond.
If you are in a relationship you can still apply for adoption as a single parent or you can apply with your partner. If you are applying as a couple the agency will assess how stable your relationship is and you will have to be able to demonstrate this.
Although local authorities are keen to find gay and lesbian parents willing to adopt, the process can be long and gruelling. If successful however adoption could be the most rewarding thing you ever do.

Guest Post: Is Your Divorce Case Going No Where in Court?

Is Your Divorce Case Going No Where in Court?
Sometimes divorce proceedings can become stalled. It mostly happens when two parties just cannot seem to see eye-to-eye on things and come to a decision. Two stubborn minded people have difficulties compromising.

Divorce proceedings can take months when this occurs. There are several measures that can be taken to prevent this from happening. One or both of you may not wish to back down, but sometimes it is the only way to move forward.
Going through a divorce is a difficult time for both parties. One party may be happy about the freedom they are about to experience while the other may be falling apart. The party falling apart may be emotionally hurt from a cheating spouse, which generates negative feelings.

Consider Mediation
Many couples try to go through divorce proceedings just with their attorneys. This rarely goes well. Attorneys fight hard for their clients. Ask a divorce lawyer for advice as to how to proceed faster. In most cases, a mediator is suggested.
A mediator can be assigned by the court. It is a neutral third party that does not know either of the people in the proceedings. They listen to both sides and offer suggestions for compromise or quick resolutions of issues.

Take into consideration that a mediator can cause the process to go a bit slower than you might like but it can put an end to a stalemate. Be open to what the moderator has to say. Discuss the options with your attorney and decide if their suggestion is feasible.

Compromise
Even if you weren’t great with compromise during your marriage, now is the time to do so. This is what puts a hold on moving forward the most in divorce proceedings. When both parties are being equally stubborn or adamant, decisions are just not made.
Items that may require compromises to be made:
Visitation with children
Custody of Pets
Sharing of school vacation periods with children
Ownership of a home or vehicle
Division of monetary assets

Compromise about things with trade-offs if you have to. This could be something like giving one spouse custody of the family dog in exchange for an extra week with the kids during the summer. Get creative on things that you know can be worked out
.
Restructure the Agreements
If one party is getting more from the divorce than another, this can also cause things to be paused. Restructure agreements to split assets equally.

This includes items such as:

Funds from the sale of property
Dividing up the vehicles
Complete lists of wanted items from the home
Divide monetary assets equally
When you restructure these agreements, the other party is likely to agree to the changes. This can also be included in the compromising process and mediation. A mediator will be able to suggest a proper division to make all parties happy.
There may be items within child custody arrangements that are not suitable or agreeable for the other party. Consider reducing child support amounts and adding more visitations. This makes the non-custodial parent feel like they can be more a part of their children’s lives.

Give in to a few Things
There may be a few things that you just have to give into. This might be giving up one holiday with the kids or losing time at a vacation property as examples. To get things moving along so you can both go on with your lives, be willing to sacrifice.

Sacrificing is part of marriage and is also a part of the divorce process. If you are unwilling to give into a few things, you could be battling each other for a year. No one wants to drag on a divorce for that long.

Ask your attorney what items would be smart for you to give into and what items to stand your ground on. Let the attorney know what the importance of these items is. If it is something you can really do without, let the other party have the item or arrangement they want.

Simplify the Terms of Child Custody
When you have too many restrictions on child custody or visitation, the other party is likely to be unwilling to agree to the terms. The pickier the custodial parent is, the more likely their spouse is going to disagree.

It is important for a child to have both parents in their life. It does not matter if you all live under the same roof or not, both parents need to be accessible. You may not be able to be civil with each other on a personal level but you need to be when dealing with the kids.

Allow for changes to be made to the visitation schedule due to the demands from kids. If the mother is the custodial parent, they may ask for more time with their father. Both parties have to be able to accommodate that.

If the non-custodial parent is going to remain in the same general area, allow them to have the kids a couple of evenings during the week. Equal time, when possible, is often the best situation for everyone involved. The children should be able to go on vacations with both parents as well.

Never use the children as pawns during a divorce.  Do what is best for them and don’t use them to get other things that you want from an arrangement.

Don’t be so demanding
If you want everything that the two of you shared during the marriage, you’ll never come to an agreement and will be in court forever. The less you want or have to have, the easier it is going to be. Decide what is necessary for your life and forget about the rest.

A divorce is an opportunity for you to start fresh with new furnishings, a new place to live and new lifestyle. Ruining the other person is just devious and doesn’t need to be done. Restarting life is much different than completely rebuilding.

The idea of a divorce is to dissolve a partnership. Both parties need to be left with the ability to live life and support themselves financially. One or both parties can end up feeling hurt and wanting to ruin the other. There really is no need for this. Take what you have to have and let them have some things too.

It is important that you try to remain as civil as possible. The more needy or devious you seem to be; the more reluctant the other party is going to be to work with you or compromise. Feelings of hate and hurt are common. Leave it at the door when it’s time to go into court or mediation.

The more civil both parties can be during a divorce, the faster it is going to go. It stops the proceedings from getting stuck and not going anywhere. The sooner you both agree on things, the faster the entire process will be over and you can move on with your lives.

Consider these items as you begin divorce proceedings. Remain amicable when possible and put the best interests of the children first when they are involved. Don’t be so greedy and just get it done and over with for the benefit of everyone involved.

Guest Post: The Legacy of Nigel Savage

The Legacy of Nigel Savage
Richard Ridyard is a DPhil candidate at the University of Oxford, having previously studied there for a BCL.

Nigel Savage is an inescapable presence in the legal education sector. Later this month he will retire as president of the University of Law (ULaw) after an 18 year tenure at what has become the biggest law school in Europe. He has had, as ULaw chairman Alan Bowkett said in a recent statement “a transformational impact”. This is no exaggeration. Under Savage’s stewardship, university status was attained with relative ease before the former charity was sold to Montagu Private Equity for an estimated £200m. His dedication to his job has been obvious; typically assiduous in strategy, his business acumen have gone unrivalled. Initially regarded as someone who won’t amount to much, Savage quickly established his statesman appeal and achieved totemic status. Surrounded by a supporting cast of devotees–even the mildest criticism is regarded as blasphemy.

To me, his legacy is laced with covetousness, its glint is a newsflash of the commercialisation of legal education. He has not been a friend of rigorous academic standards. He has been a friend of shareholders. Like in other areas of commerce, the supply has created the demand. Attempts at mass psychology in ULaw’s glossy and corporate marketing was not without immediate success. Students were, and continue to be, hoaxed into believing that if they clamber onto this Medusa’s raft of holding a ULaw qualification they will guarantee high-paid employment in the legal sector. But do they? Many of the ULaw’s contingent end up despondent, even angry–with some show of reason. Not long after graduating they are forgotten about by both education provider and statistics. Then again, disclosure never was one of Savage’s strong points. Curiously little has been disclosed about the number of students with 2.2 degrees admitted onto the LPC and BPTC. Such information as we–that is, the wider community–possess on this, and other things, has come to us through regulator reports. In their most recent monitoring report of the Birmingham branch, the BSB note that 60% of the 2012 full-time cohort had either a first or 2:1 degree class. One can infer that 40% of the cohort had a 2.2 or third degree class. And the branch management’s aim, we are told, is to recruit high calibre students. It seems their definition of “high calibre students” differs greatly from mine. Of course, how much sympathy unquenchably gullible aspiring practitioners deserve is another matter. Pupillage prospects do not provide much comfort either. According to the 2011 BSB monitoring report of the Bloomsbury branch, despite a large increase in the number of students gaining an Outstanding grade, fewer students managed to gain pupillage.

In 2011, Nigel Savage declared, with a tincture of resentment, the LLB unfit for purpose. In that terse statement he faithfully reproduces a tired false dichotomy between academia and the needs of the practitioner. Following BPP’s lead, with an almost affected pleasure in the lowering of academic standards, Savage soon launched ULaw’s two-year law degree. He later described this as “the most successful launch of a new LLB in the last 10 years”. The fact that so many applied for the course is not an indicator of its quality, but of an effective marketing strategy. ULaw’s law degree produces graduates with equally limited knowledge, learnt at breakneck speed, capable only of legal practice. Whilst it is too early for meaningful statistics on two-year LLB graduate prospects, if employers recognise my description, they will make uncomfortable reading.

We now turn to his salary; ineffaceable to his legacy. In 2009, he received “a financial-crisis-busting” 40% payrise. That meant he earned £440,000 in salary and bonuses. Except for the London Business School, that was more than the Vice Chancellor of every university in the country. This went unchanged in 2010 when he took home another £440,000. Bear in mind, at that time, the education provider was still a registered charity. Arguments over pay have not been confined to his own. Staff concerns over their performance related pay and union recognition led to a spate of angry correspondence over the period 2005-07 between Savage, with senior colleagues, and Amicus, the forerunner of Unite Union.

There is a significant polarity to Nigel Savage’s “transformational impact”. He led ULaw to an unparalleled period of growth. It is appropriate, in a reflective piece, that Savage points to Sir Alex Ferguson as a figure of inspiration. To his friends–the shareholders–the loss is a comparable one. As far as legal education is concerned, his tenure is an unpleasant patch in its history. Nigel has savaged legal education.

***

Richard Ridyard is a DPhil candidate at the University of Oxford, having previously studied there for a BCL.

***

 

Mike Semple Piggot – Charon QC author 

I have known Nigel Savage for many years – and I have seen his impact on legal education at close quarters.  I am a fan – and having founded BPP Law School with BPP Holdings PLC many years ago – I had a pretty close eye on the activities of a competitor. 

Nigel Savage is, however, more than able to argue his position.  I wish Nigel Savage well in his ‘retirement’.  I suspect that he will continue to be a presence.  I certainly hope so! 

Charity begins at home

I have known John Quail through blogging – his firm supports the free podcasts and the blog – and I am pleased to be able to give a flavour of the work his firm does with this blog post taken from his site.

***

“ACTION FOR KIDS is a charity helping disabled children and young people towards independence. When we at claims.co.uk heard about Natalia we wanted to help. Natalia is five years old and has cerebral palsy, meaning she can’t walk much farther than 20 meters using a frame or stick. Natalia enjoys exploring the world and wanted to participate in more physical activities. Hearing this we wanted to help, and did so by donating the funds for Natalia to receive a Musketeer trike.Natalia’s mum, Barbara, said: “Natalia has always dreamed of being able to run and ride a bike like other children do. Natalia is a very happy child and loves exploring the world. She wants to have fun and enjoy her life just like other kids but her condition prevents her from doing it fully. Natalia was so excited when the trike arrived and she is very happy riding it. Thank You!”Seeing what our donation has helped achieve makes our charity work worth every penny!!!”

Photo: ACTION FOR KIDS is a charity helping disabled children and young people towards independence. When we at claims.co.uk heard about Natalia we wanted to help. Natalia is five years old and has cerebral palsy, meaning she can’t walk much farther than 20 meters using a frame or stick. Natalia enjoys exploring the world and wanted to participate in more physical activities. Hearing this we wanted to help, and did so by donating the funds for Natalia to receive a Musketeer trike. </p><br /><br />
<p>Natalia’s mum, Barbara, said: “Natalia has always dreamed of being able to run and ride a bike like other children do. Natalia is a very happy child and loves exploring the world.  She wants to have fun and enjoy her life just like other kids but her condition prevents her from doing it fully. Natalia was so excited when the trike arrived and she is very happy riding it. Thank You!”</p><br /><br />
<p>Seeing what our donation has helped achieve makes our charity work worth every penny!!!
And, do, please, have a look at this page: claims.co.uk/about/charity

Employment Tribunal fees – the past, present, and future

Employment Tribunal fees – the past, present, and future
Chris Hadrill, Solicitor, Redmans Solicitors

As every employment lawyer is (or should be) aware, fees for using the Employment Tribunal became payable on 29 July 2013, with two fee “types” payable dependent upon the type of case made. The purported aim of Employment Tribunal fees was to ensure that Employment Tribunals were a “last resort” for solving employment disputes, deterring spurious claims, and reducing the reliance of the Employment Tribunal system on the Government for its funding. In this post we’ll take a look at the nature of the fees that are now payable in the Employment Tribunal, the contended effect of fees, the legal challenges to Employment Tribunal fees, criticism of the fees system, and potential reconsideration

Type and value of fees

The value of Employment Tribunal fees that Claimants are asked to pay are divided into two broad “types” – Type A and Type B. Type A claims are, broadly, concerned with unlawful deduction from wages, refusal to allow time off work, and breach of contract (among others). Type B claims are the more “weighty” claims, with claims involving detriment, discrimination, and dismissal included within this band.  Claimants must pay the following fees, depending upon which band their claim falls in to:

Fee type Type A claims Type B claims
Issue Fee £160 £250
Hearing Fee £230 £950

 

Fees are also payable upon the making of particular types of applications. The types of applications and the value of fees payable for such applications can be found within this useful document from the MoJ.

Contended effect of fees

Since the Ministry of Justice released the most recent comprehensive Employment Tribunal statistics, there has been a great deal of blog chatter regarding an apparent 79% fall in the number of Employment Tribunal claims being submitted. There is, in fact (as Gem Reucroft points out), a less marked (but only just) drop in the number of single claims being made, with this figure down by 63% as compared to the same period in 2012/13. Although it is difficult to pin down the exact cause of the drop  in the number of single and multiple claims being made in the Employment Tribunal, it is probable (and can’t be a coincidence) that Employment Tribunal fees are acting as a deterrent to both Claimants in making their claims, and employment solicitors in taking these claims on. It’s not difficult to see why: with unfair dismissal claims it’s not unusual for the maximum potential compensation that the Claimant is seeking to be between £5,000 and £10,000. If the Claimant doesn’t qualify for a partial or full remission of fees then they’re being asked to stump up between 12% and 24% of the amount they’re claiming before the hearing takes place. For people on low incomes and who are newcomers to employment law and the Employment Tribunal, this is a daunting prospect. Not only are you facing what you perceive to be a David vs Goliath situation, but you’re also being asked to pay a significant amount of money to do so.

The probable effect of the introduction of fees is not only to have deterred spurious and/or vexatious claims – it has also probably meant that a great deal of otherwise meritorious claims are not being brought because of the cost and hassle that Claimant face in bringing claims.

Legal challenges to fees

UNISON sought a judicial review of Employment Tribunal fees last year on a number of grounds, including that the fees were indirectly discriminatory, that the Government had not carried out a proper assessment of its Public Sector Equality Duty, and that the introduction of fees would make it virtually impossible to exercise an individual’s rights conferred by European Community law. The hearing took place at the High Court in October 2013 but was rejected by the High Court in February 2014 (reasons here). However, UNISON has this week announced that it is appealing the High Court’s decision to the Court of Appeal, given the impact that fees appear to have had.

Criticism of fees

As well as the legal challenge to the introduction of Employment Tribunal fees, there has also been a great deal of criticism of the impact and effect of Employment Tribunal fees (most notably by Richard Dunstan, aka Wonky Policy Wonk).

Potential reconsideration of fees by the Government

Earlier this week, Jenny Willott, the Minister for Employment Relations, stated at the Westminster Employment Forum Keynote Seminar that the government does not want a system that “puts people off” exercising their rights in the Employment Tribunal and that the new Employment Tribunal fee system was “under review”. Hugh Collins, Professor of English Law at Oxford University, also weighed into the debate this week, stating that fees could be set as low as £50 to deter spurious Claimants.

Whether that is the case remains to be seen but at least there’s still a realisation of the problems that fees have caused and an ongoing debate.

Redmans Solicitors are employment solicitors based in Richmond, London

Guest Post: A Call to Arms: Why we Must Hold the Line

A Call to Arms: Why we Must Hold the Line

“The greater danger for most of us lies not in setting our aim too high and falling short; but in setting our aim too low, and achieving our mark”
Michelangelo

The ballot is a referendum on the merits of the deal and not on the leadership. We respect Nigel Lithman QC, Tony Cross QC and members of the CBA executive who have worked tirelessly on our behalf and in what they believed were our best interests. The CBA secured concessions but our demands were too limited in the wider context of the criminal justice system as a whole and it would be wrong to agree the terms of this deal.

The proposed deal and its aftermath have the potential to be the most positive development of the campaign so far. Holding a ballot and a full and open debate is a sign of strength and should be applauded.

We only need to look at the timing of the MoJ’s “ultimatum” and the tactics involved to understand just how effective the campaign had been. The Bar was operating a successful “no returns” policy, combined with days of action. VHCC cases (one of the strongest weapons in our armoury) were about to implode within weeks.

Solicitors had mobilised: supporting our days of action, placating our lay clients and the courts and voting to join with probation officers for two days of direct action, coinciding with Grayling’s birthday (April Fool’s Day, we kid you not). Regrettably, despite rank-and-file support from the Bar, the CBA elected not to support this action and instead to consult. In hindsight, this was a strategic disaster.

Grayling spotted the opportunity to exploit a potential division between the professions and this allowed him to use his infamous “divide and rule” tactics to great success.

Unfortunately, we fell into the trap laid for us by the MoJ and did what we had correctly criticised the Law Society for doing: deals behind closed doors. Grayling deigned to offer a 10-minute audience, during which the CBA was told the deal was (paraphrasing) a “one night only” offer and that discussion and the deal itself was embargoed preventing discussion. One only has to ask, why? The answer has been seen by all: the outpouring of rage, disappointment and dissent, “Not in our name”.

“Comments are free, but facts are sacred” C.P. Scott

For those asking why we want more than the temporary protection of our fees, let us be clear: the independent Bar will be destroyed by the proposed but temporarily deferred cuts. Moreover, justice will be destroyed. Why?

Solicitors face litigation fee cuts of 17.5%.
Profit margins for firms are between 4.8% and 8.9%.
8.75% of those cuts have been implemented.
Even if a firm survives the cuts, the MoJ plans to impose a “dual contract” system: a limited number of duty contracts and then own client contracts for the rest.
Duty contracts are too big for 93% of firms.
Those without a duty contract will not survive.
Larger firms who survive will have no choice but to employ in-house advocates and exploit a modest profit margin to offset losses elsewhere.

The deal is only a temporary stay of execution of our fees and in 15 months’ time, high street firms will have hit the wall (it is happening already). Our professional client base will have disappeared. The temporary protection of AGFS will not matter, because a 0% cut of what will be zero fees is zero. Grayling will have achieved his ultimate aim whilst maintaining a pretence of supporting the independent Bar.

Those who believe that this will lead to us being able to negotiate for an increase in our fees in 15 months are, with respect, naive in the extreme and ignore what has gone before. The MoJ will come back when we are in a significantly weaker position than we are now, and will issue the final death blow.

The BSB have issued a consultation where the proposals, if adopted, could mean that were the MoJ to impose unilateral cuts in the future, we would be unable to return such work notwithstanding that it may be economically unviable.

“Those who cannot remember the past are condemned to repeat it” George Santayana

Proclaiming that the deal protects the junior Bar is short-sighted. There will be no junior Bar. We have been here before.

Carter was proclaimed as a big win for the junior Bar. Let us recall back in 2005 that Carter was a response to a call for action with the Bar threatening “strikes”. In fact the Bar continued to work and co-operated. To the surprise of the Government, Lord Carter found “a fragmented system that has not historically recognised a duty to deliver justice at an acceptable overall public cost”. The fees paid to the junior Bar at the time were seen as too low (the irony!). There was an increase in some fees to make up for the effects of inflation. The “victory” was short-lived: by 2009 the government decided to reduce the fees once again, flying in the face of Carter’s findings and an “astonishing volte-face”. In the face of opposition from the Bar, the government then threatened One Case One Fee (OCOF) and used it to secure further cuts in fees.

A feeling of deja vu:

Each government assumes that:
there is a gross over-supply of barristers; and
when “push comes to shove” the Bar backs down.

When the Bar is united, the government offers talks with a view to finding savings. The Bar then works extremely hard to identify savings, which are then absorbed back into the MoJ.

Any apparent concession by the MoJ is then swiftly removed by applying the threat of OCOF. One only needs to recall the current Attorney-General’s comments about OCOF at the recent Bar Council conference. The MoJ relies on the Bar agreeing anything to avoid that “doomsday scenario”.

“Divide and rule” is fostered by:
playing the Bar and solicitors against each other; and
playing the senior and junior Bar off against each other (either by Carter “redistributing” top end fees to the junior end or as in the current scenario where VHCC co-operation is part of the negotiation package) enabling the MoJ to say that they are protecting the junior Bar but that the “fat cats” are letting them down.

Under the current deal, nothing is on offer at all beyond a temporary stay of execution on fees and, yet again, an offer to discuss ways of saving money for the MoJ. It also represents a betrayal of those undertaking VHCC work who have shown real courage and strength of their convictions over recent months. If any review of VHCCs come to pass, the terms of the deal specify that it has to be within the current budget, meaning that the cuts of 30% are effectively set in stone. They are not on the table.

“Defend the children of the poor and punish the wrongdoer” Psalm 72:4

We are fighting to retain a justice system in which those accused by the state are properly represented, in which victims can engage and in which society can have confidence.

However, in exchange for a 15-month reprieve with a promise of nothing, we have abandoned our solicitor colleagues at a uniquely united moment in our history, abandoned our future clients to an uncertain but almost certainly unjust future, abandoned any hope of a diverse, vibrant and skilled profession and diluted our credibility in society.

“Fool me once, shame on you. Fool me twice, shame on me” Anon

The time to win once and for all is now. There is a perfect storm brewing over Petty France: prisons are rioting; private sector MoJ contracts are in tatters; probation officers are striking; for the first time in history, the Bar is striking; the judiciary overwhelmingly oppose these cuts; Treasury Counsel are in revolt; VHCC trials are on the brink of implosion and members of his own party are “railing against Grayling”. He is teetering and now is the time to press home our advantage.

We understand that the Northern Circuit is “not for turning” and is maintaining the “no returns” policy. Those on other circuits should respect their decision and show solidarity by refusing returns in such cases. We salute their courage and frankly, if they hold out, the deal is dead in the water.

The question posed in the ballot is not ideal. It ought to have been a straight question about whether members supported the deal or not. The CBA refuse to alter the question and so we ask members to see this for what it is: a referendum on the deal.

What can be achieved and what price failure? If you, like us, agree that so much more can be achieved, vote yes.

If you vote no we sign our own death warrants and succumb to a lingering death.

If you vote yes, at the very worst, we go down fighting. This is a time of unprecedented unity within the legal profession as a whole. The prize is a properly functioning and funded justice system with a sustainable future and it is within our grasp: it is our duty to fight for it.

Sam Parham, Garden Court Chambers 31st March 2014
Joanne Cecil, Garden Court Chambers

 

Why I voted Yes in the Ballot and No to the deal

Why I voted Yes in the Ballot and No to the deal.
Tim Thomas, 1 Pump Court Chambers, tt@1pumpcourt.co.uk, @TimothyThomas79

The CBA leadership of recent vintage, from Max Hill QC, through Michael Turner QC and now Nigel Lithman QC have done a terrific job in the last few years. They have woken the sleeping giant of the Criminal Bar and given it a voice in the Criminal Justice system.   They have of course proposed things such as Grad Fee + that I, as someone who is privileged enough to have 90% of his practice in VHCCs, fundamentally disagree with.  But their leadership has been outstanding and proved to us all that we are more than the sum of our parts.

I voted Yes to the question on the ballot.

Why?

An 8.75% cuts to Solicitors fees came in on 20th March. Another 8.75% of cuts will come in next year, despite reports to the contrary, whether deliberately misleading or not.   If the majority of the CBA membership vote No to the measure and yes to the deal it does not take a genius to see that the one area that Solicitors must look to offset the catastrophic cuts that will have wiped out their very slim profit margins is AGFS and keeping Crown Court briefs in-house. You cannot blame them for that and as small and medium business owners they would be mad not to.  As others have said if we vote No on this ballot measure it is a rerun of the Carter reforms, which we know resulted in a loss of work for the Bar to solicitor-advocates and HCAs such that their share of AGFS is now some 30%.  Voting No to the ballot question (and yes to the deal) will be the death of the junior bar.

It is really that straightforward.

Why else?

We have seen unprecedented unity across the CJS to oppose this Government’s barmy approach. We have had success with all the things we as a Criminal Bar have initiated: days of action getting publicity, VHCCs  returned (and not taken up by others) and the No Returns policy making Judiciary and MoJ sit up and take notice. Solicitors have supported us with all these.  The success of this approach is that having been put on the naughty step by the MoJ for much of the previous year our leaders are now regular guests at Petty France. The MoJ approached us to negotiate last week – not the other way round. The time limited deal offered last week is not, following another meeting Our Leaders were invited to on 3rd April, apparently quite so time limited.  I am sure that I do not need to spell out the implications of this to you.

We can and must do more for all CJS professionals.

Why else?

A No vote in the ballot is to reject the actions of counsel who took the brave decision to return their VHCCs briefs last year when the 30% cuts were confirmed not knowing whether the rest of the Bar would support them. A No vote rejects the part those who returned VHCCs (and those who have had cases contracted since December who have declined to sign) in getting the MoJ to approach the CBA to negotiate.

Forgive me for personalising this but I was one who returned a VHCC and I did so as the sole breadwinner in my household and with two sons under four.  Even though VHCCs are 90% of my practice, enough was enough.  I have not worked for 4 months but it remains the right decision.  There is no commitment by the MoJ to negotiate on VHCCs other than ‘within the existing financial envelope’ ie they have no intention of reversing the cuts with this deal.  VHCCs are not, as some have tried to argue, a separate issue. It may have been a quirk of timing that the return of VHCC briefs has spearheaded the CBA campaign to oppose the MoJ’s cuts but spearheaded it has. Operation Cotton, the VHCC I returned, with 5 defendants without counsel and 101,000 pages of served evidence, is due to begin on 28th April.

I do not think it is an accident there have been two meetings with the MoJ in the last eight days.

Why else?

The return of VHCCs and the days of action have had an impact. The No Returns policy was making huge waves and if re-initiated will keep doing so. Combined with the radical and brave decision by the LCCSA and CLSA to have its members decline to apply for Legal Aid in the Crown Court from 7th April I believe that we will be successful. It may be painful – it has already has been so for VHCC practitioners and the Junior Bar with No Returns. But we have a once in a life time opportunity here to safeguard the system that we have spent our professional lives supporting, Criminal Justice. We must continue to fight the cuts and unite more closely with our Solicitor colleagues.

Solicitors and Barristers cannot be simply replaced by Green Goddesses.

And finally….

A Yes vote is a vote for 100% of the Criminal Bar and 100% of the Criminal Justice System.

 

Tim Thomas, 1 Pump Court Chambers, tt@1pumpcourt.co.uk, @TimothyThomas79

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Guest Post: Understanding the Litigation Costs Reforms

Understanding the Litigation Costs Reforms

The much awaited recent reforms to UK legal costs have caused both unease and a great deal of interest among industry professions. On April 1st 2013, the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) became law, after Lord Justice Jackson’s review and report of 2010.

Despite this, many people within the legal community are unaware of the changes that have been made.

In this article, we look at the opinions and thoughts of legal professionals about the reforms to determine what they mean for the industry.

Damage-Based Agreements

One of the biggest reforms is the introduction of damage-based agreements, which are also known as DBAs. In a damage-based agreement, clients pay a percentage of the damages they’re awarded to their lawyer.

In exchange for this, their lawyer takes on the risk of being withheld payment if the case is not successful. As the fee depends on the damages awarded in the case, many legal experts believe that commercial law firms will avoid these cases due to a lack of commercial viability.

There also remains a great deal of confusion and concern regarding damage-based agreements. Counsel’s fees, disbursements and value-added tax, and protection for consumers from mis-selling remain important topics of discussion.

Costs Budgeting

Arguably the most popular aspect of the reforms is the change to budgeting that is now in effect. Solicitors are now required to budget overall costs at the beginning of their cases and update their budgets as the trial progresses.

This reform ensures that clients aren’t subject to unpredictably high legal bills at the conclusion of their cases.

In the event that the costs of a case aren’t proportionate to the claim being made, the client can enjoy security as the claim can be declared unviable. Because of the latest disclosure rules, clients also enjoy greater transparency in case budgeting.

Financing Packages

Over the last five years, the number of third party funding companies operating in the UK has increased substantially. Clients now have a great deal of choice when it comes to selecting suitable third party funders for their cases.

The new reforms reiterate an important factor in selecting a third party funder: that solicitors and clients ensure funders carefully weigh the risks and benefits of taking on your case before they accept it and create a budget.

In conclusion

There remains a great deal of discussion in the legal community about the nature of the reforms and their potential benefits. Some believe that they are an opportunity for both clients and solicitors; others that they’re an obstruction.

While no one can say for certain until the rules have been implanted and observed in practice, it can be said that clients will enjoy a greater degree of transparency in budgeting for their cases.

This increased focus on better budgeting, more transparency and an improved focus on disclosure could, in many ways, be exactly what the legal industry needs over the next year.

This article was written on behalf of Vannin Capital. Visit their website to learn more about corporate litigation.