Edward Fennell’s LEGAL DIARY

October 11, 2024

Diary news plus insights, commentary and appointments from the legal world

11^th October 2024

Editorial contact: fennell.edward @yahoo.com

SHORT THOUGHT FOR THE WEEK: Employment Law Changes: A Mazy Muddle

The Legal Diary has seldom received as much comment as this week’s on the proposed changes to employment legislation. Whatever we end up with in a year or two’s time it is likely to be good news for employment lawyers. Striking though is the high level of disagreement over its likely practical impact and, above all, ‘who wins’.

While some employers’ organisations have condemned it as a job-destroyer, Jo Mackie, partner and prominent employment lawyer at Burlingtons, commented, “It’s a total cop out by Labour and will allow unscrupulous employers to play the law, to their own ends. The Bill as proposed is good for business and, at best, so-so for workers. Bosses will be sighing with relief.”

Mackie goes on to say that workers have been given the odd sweetener, such as the right to request flexible working but that “The Bill does not make groundbreaking advances in workers rights as Labour had promised.”

How this will impact on Labour’s collapsing support among the electorate remains to be seen. But given that new-style No. 10 is supposed to be much more politically-savvy than the Gray regime it will be fascinating to see the path it will now steer.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

– Law Firms Claim Credit for Responsible Business

– Irwin Mitchell Doubling Down on ESG Priorities

– RefuBees Benefit in Bristol

– Good to be Choosy over Licensed Conveyancers

and ‘News in Brief’ from Paybe Hicks Beach

+ CONTRIBUTED ARTICLE OF THE WEEK

THE NEW EMPLOYMENT LEGISLATION: JUST HOW BIG A DEAL IS IT?

asks Elizabeth Watt

+ LEGAL COMMENT OF THE WEEK

on the Government’s proposed new employment legislation

+ APPOINTMENTS OF THE WEEK

Quillon Law and Russell-Cooke

LEGAL DIARY OF THE WEEK

Law Firms Claim Credit for Responsible Business

Lamp House’s CEO Lisa Hart Shepherd

The second global review of ‘law firms’ responsible business activity’ during 2024 has now been published by the consultancy Lamp House in conjunction with Chambers & Co.

Lamp House, it must be said, is a consultancy with a clear purpose. As it puts it, “Our mission at Lamp House strategy is to empower legal leaders to make greater impact on people, planet and profit.”

And when it comes to ‘responsible business activity’ this is its take. “We define responsible business, in a law firm context, to mean genuine focus on creating sustainable, more positive impacts for all stakeholders, including clients, people who work at the firm, the communities it works in, the industry sectors it serves and its physical environment.”

So we know where they are coming from and in her Foreword to the report Lamp House’s CEO Lisa Hart Shepherd acknowledges that there had been some ‘unwelcome pushback towards responsible business actions and accountability in parts of society over the last 12 months’. Yet despite that the 2024 results of the Lamp House analysis show the legal industry is ‘steadfast in its commitment to this agenda’.

For example, measurement of performance is becoming more rigorous (as an example see the following story from Irwin Mitchell) with, as the report describes it, ‘The largest law firms in both the UK and the US [making] significant strides forward over the last year, most notably in their dedicated reporting and taking a more serious approach towards measuring and reducing their environmental impact’.

But DEI (Diversity, Equity and Inclusion) is the area where there have been at best ‘mixed results’ – particularly in the US market (no doubt reflecting the state of politics there right now). Some firms have pulled back, it seems. Others have adopted a ‘wait and see’ approach. But there is still a further group which has re-emphasised their commitments. “This is a controversial area, not without risk. It is encouraging to see firms adapting their strategies, rather than cancelling them completely, as they maintain their ambition to create a more diverse and inclusive workforce at all levels.”

Lisa Hart Shepherd goes on to say that ‘wellbeing’ remains a ‘red flag’ for the industry. “There are some examples in this report of firms who have put in place strong initiatives to try to treat the cause, rather than the symptoms. These firms are leading the way forward and I strongly encourage other firm leaders to follow their examples.”

Irwin Mitchell Doubling Down on ESG Priorities

In keep ing with the Lamp House story (above) for the past three years Irwin Mitchell has published an annual Responsible Business report as an expression of its commitment to accountability and progress towards becoming a ‘leading responsible business’. The approach has been designed to support the United Nation’s Sustainable Development Goals (SDGs) and reflects the firm’s status as a signatory to the United Nations Global Compact (UNGC).

So this year’s report details the firm’s approach to environmental impact, diversity and inclusion, community investment and includes the publication of a new Code of Ethics and progress to responsible procurement and supply chain management. Moreover there are four new areas of focus, representing the most significant ESG ‘risks and opportunities’ for the business and its communities.

These, then, are where the firm believes it can have the greatest impact:

Protecting our Planet – reducing the impact of climate change through education, responsible consumption and sustainable services
Driving Inclusion and Wellbeing – improving wellbeing and diversity through our services, values driven culture and sustainable and inclusive employment
Empowering our Communities – reducing inequalities through education employability and by widening access to justice
Building Organisational Resilience – developing healthy and resilient organisations through a focus on ethical, accountable and inclusive governance.

During FY24, Irwin Mitchell completed work on what they call a ‘double materiality assessment’ (a term which according to the London School of Economics is ‘still up for debate’).

“Our approach to being a responsible business was already well advanced but completing the double materiality assessment has given us a new clarity on the priorities of our stakeholders as well as highlighting those issues that will have the biggest positive impact on the firm itself,” said Kate Fergusson, Director of Responsible Business and Sustainability.“Following the assessment we have refreshed our approach to Responsible Business focusing on the issues that represent the greatest environmental, social and governance risks, and opportunities for us to make a positive difference.”

Check out the full report in all its fascinating detail here

file:///C:/Users/Owner/Downloads/responsible-business-report-2024.pdf

RefuBees Benefit in Bristol

From supporting bees to backing refugees Burges Salmon staff are out doing the right thing this Autumn.

First, on the bee-front, the firm has three beehives spread around the country. At the Lawrence Weston Community Farm (LWCF), near Bristol, for example, the firm just completed its second honey harvest, filling nearly 100 jars , despite a relatively wet and cold summer for the bees. The nectar will be sold by the firm, with proceeds reinvested into LWCF, a community-managed project that aims to improve the quality of life for local people. “It’s a genuine, mutually beneficial partnership with the farm benefiting financially and from the hard work and enthusiasm its people put in during regular corporate volunteering sessions, and Burges Salmon benefiting from improved employee health and wellbeing,” said Paul Jayson, Manager at LWCF.

Meanwhile at the beginning of November the firm will be backing the Ashley Community & Housing Ltd’s (ACH) initiative ‘The Welcome Party’ as the headline sponsor in supporting Bristol’s refugee workforce.

“Supporting marginalised communities and ensuring everyone has the opportunity to flourish in our cities and within the legal profession is a pillar of our approach as a responsible business,” said Roger Bull, Burges Salmon’s Managing Partner. “We’re thrilled to be supporting ACH’s work and to be launching together The Welcome Party, to highlight refugees’ success stories in our community and to encourage collaboration between businesses to support refugees and migrants into sustainable employment. This work plays an important part in how we continue to contribute to Bristol’s One City plan for a fair, healthy and sustainable city, where everyone can play a part, and share, in its success.”

Good to be Choosy over Licensed Conveyancers

Work by the Council for Licensed Conveyancers (CLC) to empower consumers is having “a significant, measurable impact,” the Legal Services Board (LSB) has been told.

In its recent report to the LSB the CLC outlined its experience of co-operation with HM Land Registry and the Legal Ombudsman (LeO), as well as other legal regulators, with the aim of putting more information into the public domain and helping consumers to find and choose a lawyer.

One of the key issues addressed is the amount of ‘shopping around’ for legal services as part of a considered process by consumers. According to the 2024 Tracker Survey issued by the Legal Services Consumer Panel 54% of consumers who most recently used a licensed conveyancer shopped around for that service, compared to 41% for all legal services and 48% of those who had recently used conveyancing services (from any provider).

The findings indicate either that the CLC’s Informed Choice rules are having a greater impact than is average for the legal sector or, when consumers shop around, they are more likely to choose a licensed conveyancer than another provider, commented the CLC.

“The Competition and Markets Authority identified a shortage of information for consumers of legal services,” explained CLC Chief Executive Sheila Kumar. “The CLC’s role in the cross-sector initial response and in the development of the Legal Choices website alongside our commitment to our Informed Choice agenda is delivering significantly positive results.

“We are not complacent, though – we know there is still some way to go and are determined to progress the work with other regulators and stakeholders to ensure that consumers are able to make an informed choice of legal service provider in a way that works for each consumer.”

NEWS IN BRIEF Payne Hicks Beach

On Wednesday of this week Payne Hicks Beach hosted over 100 guests from the worlds of politics, law, academia, media and communications to discuss the effects of the rampant spread of misinformation. The discussion entitled “The Era of Misinformation: Media, Technology and The Law” provoked fascinating contributions from the panel of James Naughtie (BBC presenter), Polly Curtis (CEO of Demos), Jamie Susskind (barrister & author) alongside Mark Jones and Hanna Basha, Partners at Payne Hicks Beach – and all expertly moderated by Sir Robert Buckland KBE KC, the former Lord Chancellor and MP but a victim of the Sunak election.

The conversation ranged from considering effects of social media and misinformation on democracy and news consumption, through to a lively discussion on what a new government should be considering to protect the democratic process, and individuals impacted by harmful content.

CONTRIBUTED ARTICLE OF THE WEEK

THE NEW EMPLOYMENT LEGISLATION: JUST HOW BIG A DEAL IS IT? asks Elizabeth Watt

Businesses need not panic about the proposed changes in the Employment Rights Bill. The announcements this week are by no means a done deal. It is a draft Bill. It could be years until we see the Employment Rights Bill come into force with reports claiming, in some cases, employees will need to wait near 1000 days to enjoy the new rights. The proposals will go through the scrutiny of Parliament where it will typically ping-pong between the House of Lords and Commons, before we likely see a very watered-down version of today’s proposals, as we saw with the Workers Protection Act. So, who knows what the legislation will look like at the end of this process. It will be the companies however that are seen to be flexible, not fixated on the pounds and pence, and embracing change who will be the ones that build a positive reputation that retains and attracts good staff.”

Businesses should also be reassured that increasing statutory sick pay and maternity and paternity pay will impose no additional cost to their company. As in the current system, all statutory pay is paid by Government.

Where employers will incur costs due to the Employment Rights Bill, is in the HR processes that will need to be reviewed and implemented to update them in line with the new regulations or any encouraged guidelines. With flexible working by default, new statutory pay, and day one rights, there will be lots of contractual changes that businesses will need to consider, which could cost some companies thousands. Invest in updating your Company HR Handbook too and ensure that all staff know where to find the information on employment policies and rights. An accurate and clear Handbook could save you a lot of time, hassle and money in the long run from a tribunal claim plus protect your reputation. Use processes to help make life less complicated.

We’ve known that this was coming for a while now so this shouldn’t be a surprise to many HR teams and employers, with many having already reviewed and considered their employment policies in line with the forthcoming proposal.

It was difficult to see how Labour was going to legislate ‘right to switch off’ so it’s not surprising that this is now subject to further consultation.

Flexible working or a ‘right to switch off’ won’t work for every company, especially those with overseas contracts working across different time zones where they need someone to be available at different times of the day and week. Companies will need to take a case-by-case approach when creating ‘right to switch off’ guidelines and explore how flexible working could work.

Elizabeth Watt is an Employment Solicitor at WSP Solicitors

LEGAL COMMENT OF THE WEEK

TOPIC: The publication of the Employment Rights Bill

COMMENT BY: Andrew Czechowski, Associate, Simkins LLP

“The Labour Government had previously indicated that it would outlaw zero-hour contracts and fire and rehire practices. However, the language used in the announcement of the Bill suggests that there will not be an outright ban on zero-hour contracts or on fire and rehire practices altogether; the Government has stated that it will ‘tackle’ fire and rehire and end only exploitive zero-hour contracts.

“The language does not commit to an absolute prevention on such practices and therefore indicates a watering down of previous pledges made.

“The plan to allow unfair dismissal claims from day one could bring about a revolution in employment law. Even if more relaxed rules will apply in probationary periods, employers will be a lot more cautious about hiring staff.”

COMMENT BY: Luke Bowery, partner, Burges Salmon

“It was a bold move for the government to promise an Employment Rights Bill within its first 100 days of power not least given the extent of its proposals for change. However, what is, by any standard, a bumper Bill has dutifully been delivered on time.

“With much talk of ‘100 days’, many had assumed the new suite of worker rights would come into play immediately. However, the new Bill is simply a step on the way – albeit a significant one, of course.Much of the detail is yet to be worked out so many reforms will not take effect until 2026 – and importantly changes to unfair dismissal will not be implemented until autumn 2026.

“In delivering its promised ‘once in a generation’ overhaul of workers’ rights, the government has a difficult balance to strike. It is, after all, also committed to delivering growth. The Bill has some concessions for employers. For example, whilst unfair dismissal will become a day one right, a fair dismissal of an employee who is ‘not right for the job’ during any probationary period will be easier to achieve. A ‘lighter touch’ dismissal process and a probationary period of potentially nine months are suggested to help with this.

“A right to switch off which would have made it difficult for employers to contact their workers out of hours does not appear in the Bill. This will be addressed, instead, following consultation, through a statutory Code of Practice which is likely to offer more flexibility for employers in implementation.

“The government is seeking to extend flexible working by making it the ‘default’ in a bid keep people in for work for longer and to increase retention rates. Whilst these intentions may be commendable, the government’s stated aim is to ‘ensure more requests are agreed’ meaning employers are likely to find it more difficult to turn down requests than is currently the case.

“An area of concern for employers is the government’s proposals to conflate the status of ‘employee’ with that of ‘worker’ and award all workers the full suite of employment rights. Employment status is a complex area of law. Employers will be pleased, therefore, that the government, whilst remaining committed to reform, has acknowledged that this will take longer to undertake and implement and so will sit outside of the new Bill.

“With improved rights for mothers, fathers, those who are sick, new joiners, flexible workers, zero hours workers and many others as well, employers should be under no illusions – this Bill means business.”

COMMENT BY: Sarah Henchoz, global head of employment litigation, A&O Shearman

“This will bring about significant change and follows a prolonged period of legislative calm when it comes to employment law. Employers have a lot to consider. However, because most of the changes won’t take effect until Autumn 2026 they have the time to prepare for the new regulatory environment which inevitably will bring increased costs, processes, enforcement and litigation risks.

“Taken as a whole, it seems the government has landed on a compromise, to placate both business and unions, in proposing a statutory probation period that will allow employers to assess new hires, whilst retaining day one unfair dismissal rights for employees.

“Plans to make the right to flexible working the default position will also proceed, unless employers can prove the request is unreasonable. The heavily trailed proposal giving employees the right to switch off has been parked for now but will form part of future reforms alongside plans to simplify worker status and to require ethnicity and disability pay gap reporting.

“All told, the government has been treading a difficult path to balance enhanced rights for employees against the pleas from businesses for light touch regulation in these difficult economic times.”

APPOINTMENTS OF THE WEEK

QUILLON LAW

Ian Hargreaves is joining Quillon Law, the litigation boutique, as a partner in its fraud practice with a view to bolstering the firm’s expertise in handling large and complex fraud cases and investigations. Formerly with Covington & Burling where he was both EMEA Co-Head of White-Collar Defence and Co-Head of Commercial Litigation, Hargreaves is recognised as a leading litigation and white collar specialist. In this context his track record before the English Courts is extensive having acted for numerous corporate and UHNWI clients in criminal or regulatory matters – dealing with cases or investigations involving the SFO to the U.S. DoJ and the FCA to the Medicines and Healthcare Products Regulatory Authority.

Hargreaves is ranked with Chambers for his asset tracing capabilities, and has also been involved in judicial review applications (recently involving the Cabinet Office), cyber-ransom cases involving the NCA and FBI regarding sensitive encrypted material, and extradition matters.

“Since being established only a few years ago, Quillon Law has emerged as an industry leader in the London litigation market,” he said. “I am delighted to be joining the partnership and I look forward to working with the team to advise clients in navigating a wide range of legal challenges and disputes.”

RUSSELL-COOKE

Jessica Zama, an Italian law expert, is joining Russell-Cooke’s Italian law offering in London. Dual qualified as an Italian avvocato stabilito and English solicitor she brings a decade’s experience of cross-border estate planning for individuals with assets in Italy, Italian Wills and Italian succession law and procedure. She also has experience assisting clients with property transactions in Italy and on immigration matters.

“Client care is at the heart of what I do,” she says. “I appreciate that most of my clients are experiencing a difficult time, made even more so by having to deal with a different jurisdiction than one they are used to. My aim is to help bring their matters to the best conclusion in the simplest way.”

Partner Andrew Godfrey commented, “Jessica is a welcome addition to our private client team. Her deep expertise advising on Italian law will greatly enhance our existing offering to clients with a background or assets in Italy, as well as attract new clients. This is an exciting addition to our service capability, and we very much look forward to working closely with Jessica.”

WE hope that you have found this edition of the LEGAL DIARY interesting (and even useful). If so, please circulate it to colleagues.

In any case, please continue sending your diary-type stories, legal comment and insights plus latest appointments to fennell.edward@yahoo.com