SOLICITORSJOURNAL

Employment Law Practice: An Expert GuideEDITED BY LAURA SLATER

SPECIAL REPORT

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Employment Law Practice: An Expert Guideis published by Ark Group in association with Solicitors Journal

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Employment Law Practice: An Expert GuideEDITED BY LAURA SLATER

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Contents

Executive summary .................................................................................. vii

About the authors .....................................................................................xi

Employment law review ............................................................................ 1By Trevor Leuty, consultant with Banks Kelly Solicitors Limited

Legislation update ...........................................................................1Case update: Are partners in LLPs workers? .........................................5Case update: Agency workers and discrimination claims ........................6Case update: Holiday pay and commission ........................................6Case update: TUPE ........................................................................8Case update: Collective redundancies ...............................................9Case update: Discrimination ........................................................... 13Case update: Reasonable adjustments ..............................................14Case update: Agency and discrimination ..........................................15Case update: Dismissal at the behest of third parties ...........................15Case update: Disciplinary procedures and injunctions ..........................16Case update: Issue estoppel ...........................................................17Traps for the unwary .....................................................................18

The changing face of parental rights ........................................................ 23By Catherine Wilson, employment partner at Schofield Sweeney LLP

What do the new provisions mean? .................................................23Who is an eligible employee? ........................................................24Issues for employers ......................................................................25Conclusion ..................................................................................26

Immigration update ................................................................................ 29By Tim Hayes, solicitor at Bircham Dyson Bell

The Points Based System: Pointless? ..................................................29Rights of appeal ........................................................................... 31Looking forward ...........................................................................33

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Equality Act 2010: Time for a review? 35

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Equality Act 2010: Time for a review? ...................................................... 35By Ryan Clement, barrister at Conference Chambers

Social media and HR3.0 ......................................................................... 39By Kevin Poulter, legal director at Bircham Dyson Bell

Recruitment ..................................................................................39Inappropriate behaviour ................................................................40Criticising the employer .................................................................. 41Bullying and harassment ................................................................42Confidentiality .............................................................................43What’s your policy? ......................................................................43

The A to Z of unfair dismissal .................................................................. 45By John Sprack, employment judge and former Reader at City Law School

The principles that underpin unfair dismissal .......................................45

Beware the pitfalls of clients retaining consultants ...................................... 53By Jonathan T R Silverman, partner at Silverman Sherliker LLP

Key points to keep in mind when drafting consultancy agreements .........531. Clarify exactly what the client is actually expecting from the consultancy .................................................................................532. Establish who will be providing the service ....................................543. What is the agreed fee structure? ................................................554. Do not forget to protect the client’s trade secrets and know-how .........555. And whilst talking about confidentiality... .......................................566. Product development and design consultancy .................................577. Termination ..............................................................................57

Covenants, injunctions, and damages....................................................... 59By Paul Mander, partner and head of employment at Penningtons Manches

How does the issue arise? .............................................................59Client management .......................................................................59The evidence ...............................................................................60Cost .......................................................................................... 61The law ...................................................................................... 61Common types of covenant and the issue of reasonableness ................62Common remedies .......................................................................63Trends ........................................................................................64

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Employment Law Practice: An Expert Guide

Repudiatory breach in the employment context: Who jumped the gun?....... 65By James Holmes-Milner, employment law barrister at 9 Gough Square

Accept or affirm? ..........................................................................65Non-payment as repudiation ..........................................................66The risks of affirming .....................................................................66Accepting a repudiation ................................................................67How to accept? ...........................................................................67Two wrongs… .............................................................................68

Expanding your employment practice ...................................................... 71By Carolyn Mumby, founder and CEO of Employment Law Essentials Limited

Don’t curb your enthusiasm .............................................................71Marketing essentials ......................................................................71A marketing strategy to fit your practice .............................................72

How employment solicitors can market their practice more effectively ......... 77By Doug McPherson, director of Size 10½ Boots

Identify what your clients want ........................................................77Due diligence ..............................................................................78Developing the business framework ..................................................79Getting in front of existing non-employment clients ...............................82New client acquisition ...................................................................82

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Executive summary

EMPLOYMENT LAW has traditionally been an area that has changed with the seasons and those working in this practice area have learned to be flexible. This is all to the good as the past 12 months have seen a number of important changes to the practice area and, with still more changes on the horizon for 2015, employment law practitioners will need to get up to speed with these developments and their implications. Drawing on the experience and expertise of practitioners and consultants working in employment law, this report is designed to help them to do just that.

The report begins with an extensive overview of the key changes to legislation in 2014, from the Government’s moves to promote early settlement of claims with the introduction of mandatory pre-claim Acas conciliation, to the introduction of shared parental leave, and the amendments to the TUPE regulations. Also included is a review of leading employment cases from 2014 and the key points to be taken from these.

One of the most significant legislative changes in 2014 was the introduction of the Shared Parental Leave Regulations 2014. The new Regulations – and related changes – are the focus of the second article in this report, which highlights the potential challenges employers may face when it comes to implementing policies on shared parental leave and pay, and discusses the main points such a policy should include.

With the tightening of immigration laws over the past year – a trend that looks likely to continue into 2015 – it is increasingly necessary for employers to fully understand the requirements for employing foreign workers. The Immigration Act 2014 and other significant changes to immigration rights and obligations in the UK is the subject of a third article, which discusses how the changes will affect employers and their ability to bring in foreign labour.

In light of the recent ruling by the European Court of Justice (ECJ) on 18 December 2014 that obesity may, in some cases, be considered a disability, another contributor discusses the Equality Act 2010 and argues that it is time for a review of what is considered a ‘protected characteristic’. This is an area where employee codes of conduct relating to discrimination, bullying, and harassment are often more advanced than the law – is it time that legislation caught up?

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Executive summary

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Workplace bullying and harassment is just one issue that a business must take into account when considering the use of social media by employees. The next article in this report discusses the many challenges related to the use of social media by employees, including its impact on areas such as breaches of IP law and confidentiality, the extent to which an employer may be liable for the actions of employees who use social media, both in a personal and professional context, and what might constitute ‘inappropriate behaviour’ or even grounds for dismissal.

Unfair dismissal has always been central to employment law, yet it is a complex area that continues to evolve. Accordingly, this report contains a practical ‘A to Z’ overview of the principles underlying unfair dismissal that every employment solicitor should be familiar with, from the Acas Code of Practice to zero hours contracts.

Another traditionally tricky area covered in this report is consultancy agreements. One article focuses specifically on the ‘pitfalls’ associated with these, and outlines the key aspects to keep in mind when drafting an agreement, including issues of intellectual property and confidentiality.

Client care is always an important consideration for solicitors and perhaps particularly so in cases concerning covenants, injunctions, and damages where emotions often run high. One contributor to this report addresses this important area, discussing the client management aspect as well as other key considerations for employers and their trusted advisers, and covering common types of covenant the solicitor should be aware of and remedies open to the employer.

Of course, restrictive covenants go out the window along with all contractual obligations in cases of repudiatory breach of contract – a fact both employer and employee may seek to exploit or avoid. This report also includes an update on repudiatory breach in the employment context, based on case law from 2014.

A 79 per cent fall in employment tribunal claims following the introduction of tribunal fees in July 2013 and an increasingly competitive marketplace has meant a corresponding fall in incoming work for employment solicitors, many of whom are now looking for ways to diversify, expanding into non-contentious areas or offering advisory services. Even for those who have not been much affected by the reforms, as yet, there is a need to generate more business from new and existing clients in order to keep apace with, or ahead of, the competition. Accordingly, the two final articles in this report cover marketing and business development in an employment law context, and contain practical guidance on subjects such as crafting a marketing strategy to fit your practice and how to identify and articulate a client value proposition.

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While fees may be making it more difficult to bring cases to tribunal, as long as companies have employees, there will be a need for employment solicitors who can provide real and tangible benefits for their clients. By applying the key recommendations of this report, solicitors will ensure that they prepare themselves for the continuing developments in employment law, and that they differentiate themselves in terms of the value and service they offer their clients.

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About the authors

Ryan ClementRyan was called to the Bar in 1996. Prior to specialising solely in employment, he appeared regularly in the criminal courts. In general civil work he has appeared up to the High Court in London and in employment he has appeared up to the Court of Appeal.

Ryan advises companies on various human resource management issues and provides them with training on good employment practices. He has written many published articles in, amongst others, New Law Journal and Solicitors Journal.

Ryan is a Fellow of the Royal Society of Arts, Member of the Chartered Institute of Arbitrators, Member of the Employment Law Bar Association, and Member of the Employment Law Association.

Tim Hayes, solicitor, Bircham Dyson Bell LLPTim advises commercial and private individual clients on immigration issues, often relating to their employment. His knowledge of both employment and immigration practices means he is particularly well placed to advise on business immigration matters. Since qualifying as a solicitor with BDB in 2012, Tim has helped a number of businesses with their sponsor licence applications and obligations, including providing strategic advice to companies seeking to move staff between jurisdictions, helping current and prospective client employees apply for entry clearance and leave to remain, and advising employers on their sponsorship obligations. Before joining BDB, Tim was a Home Office Presenting Officer, advocating before the First Tier Immigration and Asylum Tribunal on behalf of the British Government in a wide range of immigration, asylum, and deportation appeal cases and bail applications. Tim participates in London First’s specialist Immigration Group, regularly contributing to immigration policy discussions, often directly with ministers. Tim has been described as a ‘key name’ in the Legal 500’s most recent rankings list for his immigration work.

James Holmes-MilnerJames is an experienced employment law barrister practising from 9 Gough Square, London. He has a particular interest in restrictive covenant litigation,

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although his recent employment cases have included a series of Human Rights Act challenges to diplomatic immunity in the employment tribunal.

He appeared in Benkharbouche v Republic of Sudan (EAT 30.04.13), an appeal against the employment tribunal’s refusal to read down or disapply sections of the State Immunity Act 1978 under Article 6 ECHR and Article 47 of the Charter of Fundamental Rights.

Trevor LeutyTrevor has been admitted as a solicitor for just over 40 years and is currently a consultant with Banks Kelly Solicitors Limited. He has developed a niche within the motor industry with a particular emphasis on employment law and practice. That includes appearing extensively before Employment Tribunals throughout the UK, advising on both contentious and non-contentious issues, and training managers. His client base includes a number of well-known manufacturers, importers, and retailers within the industry.

His specialist interests are employee/worker status, redundancies both collective and individual, the TUPE regulations, religion and belief, and whistleblowing. His favourite training format is a workshop which encourages maximum participation from delegates.

He is a regular speaker for Central Law Training (CLT), and in early 2015 he will be presenting a TUPE workshop and an employment law update with them. Further details of both courses are available on the CLT website.

Paul ManderPaul is head of the 30 lawyer employment team at Penningtons Manches. He advises on a broad range of contentious and non-contentious employment and partnership matters, and he is recognised in particular for his expertise in restrictive covenant and injunction issues. Paul is experienced in all forms of employment litigation, both in the High Court and tribunals, as well as boardroom disputes, discrimination (in employment and partnership), TUPE matters, and outsourcings. He works for a wide range of private sector employers, from a major fast food retailer to financial institutions and, in addition, acts for senior employees and partners, frequently in relation to discrimination claims.

Paul has appeared on television and in the broad sheet press in relation to employment law issues and is recognised as a leader in his field by both Chambers Guide to the UK Legal Profession and The Legal 500.

Douglas McPhersonDoug has worked with professional service firms for over 20 years, first as head of sales and marketing for Intellectual Property Publishing, then as the

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commercial director of Lloyds of London’s Marine Intelligence Unit. Doug is now a director of Size 10½ Boots, a business development agency that works solely with professional services firms.

Size 10½ Boots work with law firms, patent and trade mark attorneys, Chambers, and accountancy practices all over the UK. They combine their knowledge of the professional services market and direct in-house experience with the sales and marketing skills Doug and his partner Bernard Savage acquired from past roles in international blue chip sales-led organisations. In addition to providing strategic marketing advice, Size 10½ Boots provide a range of more tactical support including training and personal coaching for professionals at all levels, copywriting and design services, and targeted PR support.

Doug is a regular contributor to a range of publications in addition to Solicitors Journal, including Managing Partner, Private Client Adviser, Intellectual Property, The Patent Lawyer, and The Barrister.

Carolyn MumbyCarolyn is founder and CEO of Employment Law Essentials Limited which provides an HR portal to law firms ranging from top 100 firms to sole practitioners (see www.employmentlawportal.com). Previously, Carolyn was called to the Bar in 1998 and later became legal services director for a national employment law consultancy.

Carolyn is an experienced teacher, trainer, and public speaker engaging with employers, managers, and other lawyers since 2005 and putting her passion for law, technology, and marketing into practice. Carolyn runs a course called ‘Expanding your Employment Practice’ for CLT which focuses on helping law firms to create well-rounded marketing campaigns. See www.clt.co.uk/course/Expanding-your-Employment-Practice for further details of the course.

Kevin Poulter, legal director, Bircham Dyson Bell LLP, and editor at large, Solicitors JournalKevin is a legal director in the employment department at BDB and head of its social media team. He has a wealth of experience in advising charities, businesses, and senior executives on all aspects of the employment relationship, in both contentious and non-contentious matters. He has particular experience in discrimination claims, business transfers, and restructuring alongside general HR advisory work. Kevin has a keen interest in the use of social media in the workplace and maintains a popular blog on this fast-developing topic. He speaks regularly on employment and social media issues for a number of organisations, including The Law Society and writes extensively on the subject.

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He is a regular commentator on the BBC and other news channels. Kevin is the editor at large of the Solicitors Journal.

Jonathan T R SilvermanJonathan was the founding partner of the City law firm Silverman Sherliker LLP in 1981. Since inception he has taken it from being a sole practitioner firm to a 12 partner full service practice operating in conjunction with the IPG international network providing advice to clients around the globe. In addition to building the law firm, he has served as a non-executive director to a number of companies in the service and property sectors, and he has found that experience invaluable when advising clients as it has given him the perspective of seeing the matter from the client’s viewpoint.

He is also a director of IPAN, the intellectual property awareness network, which works with government and educational bodies to assist business in exploiting intellectual property. He is a regular contributor to both the BBC and Sky on legal topics, and he has a particular interest in the application of technology to professional services and as well as specialising in IP advises on the classic car investment market.

John SprackJohn is a barrister who has had 15 years of experience as an employment judge, as well as experience as a Reader at the Inns of Court School of Law (City University). John regularly presents CPD courses for CLT in employment law. He is the author of a number of books, the latest of which is Blackstone’s Employment Tribunals Handbook 2014–2015 (published by Oxford University Press in October 2014).

Among the courses that John is presenting for CLT in 2015 is ‘Unfair Dismissal – an Overview’ which provides detailed coverage of the principles which underpin unfair dismissal which are outlined in his article. John’s training puts the principles into a practical framework, making use of problems, case studies, and interactive discussion covering: constructive dismissal (including fundamental breach, factors causing the resignation, delay and the last straw doctrine); continuity of employment, umbrella contracts, and deemed continuity; employment status; potentially fair reasons under the Employment Rights Act; interpreting and applying the ACAS Code of Practice; and remedies (reinstatement and re-engagement, calculating compensation). See www.clt.co.uk/course/unfair-dismissal-a-practical-overview/ for further details of the course.

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Catherine WilsonA former barrister, Catherine has over 25 years of experience in advising on employment law. Her clients include retail and financial services businesses, not for profit organisations, and high net worth individuals. She is currently a partner with Schofield Sweeney, having previously been a partner and head of department with Eversheds and Thomas Eggar LLP.

Catherine has particular expertise in discrimination and whistleblowing matters. A regular trainer and speaker, she also writes regularly for the legal and trade press. Catherine runs the ‘Modern Workplaces and the Changing Face of Maternity, Paternity and Flexible Working’ training course for CLT. See www.clt.co.uk/course/Modern-Workplaces-and-the-Changing-Face-of-Maternity-Paternity-and-Flexible-Working for further details of the course.

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