Edward Fennell’s LEGAL DIARY

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

February 10 2023

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: BE AFRAID (BUT MAYBE NOT TOO AFRAID)

What once seemed to be sci-fi fantastical seems to becoming increasingly close to reality. The unstoppable march of ChatGPT is already in the suburbs of the medical profession and the world of the law must be looming as its next big destination.

No doubt we shall get a more precise understanding of how the story will unfold when Richard Susskind publishes the third edition of his book ‘Tomorrow’s Lawyer – A Introduction to your Future‘ at the end of the month. The fact that it is ‘new and updated’ elegantly demonstrates that this is a fast-moving picture and it could go off in unexpected (although not necessarily unpredictable) directions.

The experience of both the industrial and agricultural revolutions of two centuries ago highlight the relentlessness of technological innovation however much resistance is put up by those whose livelihoods are threatened on the way. In the law for sure there are plenty of areas which could benefit from some technological substitution given a dearth of affordable legal skills. Thinking this through demands wisdom by the Government and profession alike. Is this Lord Chancellor up to the job?

The LegalDiarist

In this week’s edition

LEGAL DIARY OF THE WEEK

+ Life as an ‘employed barrister’

+ Give and take at Brick Court

+ For Meta or worse at Burges Salmon

+ DLA Piper backs TheCityUK

+ LEGAL COMMENT OF THE WEEK on the dearth of legal aid housing lawyers, McDonald’s and the ECHR while the Competition Appeal Tribunal drives through DAF Trucks

+ CONTRIBUTED ARTICLES OF THE WEEK

– Menopause reform: A missed opportunity? by Louise Skinner

– The impact of media reporting on the family Courts by Victoria Cannon

– Monitoring employees at work: How farcan you go legally? by Andrea London

+ APPOINTMENTS OF THE WEEK at Baker & McKenzie and Dawson Cornwell

+ E-VENTS

LEGAL DIARY OF THE WEEK

Life as an ‘employed barrister’ – not an ‘open and shut’ case

The legal profession is scarcely united. Differing roles and responsibilities have split not only barristers from solicitors and solicitors from legal executives and paralegals but also split the barristers themselves between the self-employed and the employed.

But as ‘Life at the employed Bar’ (a report with recommendations published by the Bar Council this week) points out, it is a complex picture. On the one hand, “The employed Bar is more diverse, reports higher levels of wellbeing, and experiences greater flexibility and work/life balance than the self-employed Bar.” But there is also a downside. As well as experiencing the same kind of bullying and harassment as their self-employed cousins employed barristers must face a far lower rate of taking Silk and a lower perception of their status.

The key findings of the report include:

• Just over half of employed barristers work in the public sector and nearly a quarter work in legal firms.
• Main areas of practice for the employed Bar are crime (34%), commercial and financial services (14%), and public law (13%).
• The employed Bar is more diverse than the self-employed Bar with 19% of employed barristers being from an ethnic minority background (compared with 15% at the self-employed Bar) and women making up 49% (compared with 37% of the self-employed Bar).
• Employed barristers make up 18% of the whole Bar but just 2.6% of Silks (King’s Counsel).
• 86% of employed barristers report a sense of collaboration and co-operation in their workplace, but 31% report personally experiencing bullying, discrimination or harassment at work. This is more commonly experienced by women, people from ethnic minorities, and is more prevalent amongst those who work in solicitors’ firms. 

 “The recommendations we’re adopting provide a clear steer on things we must improve,” said Stuart Alford KC, Chair of the Bar Council Employed Barristers’ Committee, “[These include] Better information about the benefits of a career at the employed Bar, targeted support on career progression – particularly when it comes to judicial appointments for employed barristers, a greater focus on tackling bullying and harassment within the employed arm of profession, and support in developing networks for employed barristers throughout England & Wales.”

Give and take at Brick Court

Bearing in the mind those big difference between barristers’ chambers and firms of solicitors one is not too surprised when members of the same set face off against each other in the same case. Professionalism means there will be no compromise to confidentiality despite those involved having neighbouring offices.

Even so, every now and again there is a case which makes one scratch one’s head. A good example has come just recently when the Competition and Markets Authority (CMA) found itself on the wrong end of a joint decision by the Competition Appeal Tribunal (CAT) and the Administrative Court. The judgment was that the CMA did not have the power to require two German companies – BMW AG and VW AG – to produce documents held by them in Germany on the grounds that the Competition Act 1998 cannot be exercised in respect of persons without a UK territorial connection (which was the case with BMW and VW).

The irony of this – especially as it was a case involving competition – was that while Sarah Abram KC and Andrew McIntyre (who acted for BMW) are at Brick Court so too are Richard Howell and Marie Demetriou KC (who acted for the CMA). Sounds as if they’d got the case sewn up (in the most correct possible way).

For Meta or Worse at Burges Salmon

 It’s been a big week for AI with Microsoft announcing a major overhaul of Bing, adding the same AI technology that underpins the viral ChatGPT. But unless you are a nerdy 18 year old it’s sometimes hard to keep up with all this because advances leap frog each other with such rapidity. So, much credit to Burges Salmon for hosting another in its series of innovation and technology weeks which are designed to bring the firm’s people together to explore and be inspired by the latest technologies. As the firm puts it, the aim is motivate the team to ‘take part in a journey of discovery by exploring new technology, focusing on aspects of digital transformation and challenging people to think outside of the box’.

The week opened with a session hosted by the firm’s Innovation team on ‘delighting clients’. To illustrate the case they had brought in Rosie Hatton, who heads up the digital Business Relationship Management team at the Houses of Parliament, to deliver a keynote talk on ‘making digital more human’. Hatton provided practical tips on how organisations can get more value from digital whilst ‘not leaving anyone behind along the way’.

Not afraid of dealing with the big questions the programme also introduced the Bristol-based tech start-up Iternal to answer the key question “What is the metaverse?!” This enabled participants to enjoy an immersive experience with a range of different metaverses tailored with Burges Salmon content There was also a reflection on the impact that virtual reality might have in the future. (Going to a virtual court must surely be just a short step away – especially given the state of many ‘real’ courtrooms today!).

DLA Piper Calls the Tune in the City

There’s a lot to be said for TheCityUK, the champion of all things City of London on the world stage. If ever one is feeling a wee bit gloomy it’s always a tonic to read a CityUK document to raise the spirits. For example, a recent report on TEN WAYS TO MAXIMISE UK SERVICES TRADE trumpeted “UK businesses are globally renowned for producing creative services that solve some of the world’s most pressing problems and make people’s lives better. The UK is the world’s ideas factory: its strengths are in services sectors which make up 80% of GDP and contribute consistently strong trade surpluses – £127 billion in 2021 alone.”

No question, it’s stuff like this which gives a lift to the feelings as one plods up to the home office having just heard another damning account of Britain’s economic performance on the BBC Radio 4 Today programme. So it’s good to see that law firms are doing their bit to help get the positive message across. Hence the early publicity for TheCityUK’s annual Conference – scheduled for the end of June which announces that the event is ‘Kindly supported by Citadel Securities and DLA Piper’.

So well done DLA Piper for helping raise the flag. What’s on the flag, however, is not clear – there was no clue as to who might be speaking. But then with a regular shuffling of the Whitehall pack who could you possibly invite for sure? Or even which government departments might not have been re-organised – again. But at least TheCityUK knows it can rely on DLA Piper.

LEGAL COMMENT OF THE WEEK

TOPIC: The Government’s failure to find law firms willing to undertake housing legal aid work

COMMENT BY: Lubna Shuja, President, Law Society of England and Wales President

“The fact that the government has failed to attract any bids for housing legal aid provision in 12 areas of the UK – including large areas like Liverpool – shows just how unviable it has become for providers.

“For many, this type of contract is becoming increasingly difficult to make this work financially. As a result, some are instead choosing to leave the legal aid market altogether.

“We are really concerned that this could lead to less support being available for families at risk of losing their home at a time when we are in the middle of a cost of living crisis.  More and more people are struggling with rising rents, spiralling debt and mortgage costs.

“We already know from our advice desert maps that 24.4m people (41%) do not have access to a housing legal aid provider.The government is currently undertaking a review of the civil legal aid market but with this not due to report until 2024, we are calling on the government to provide an immediate injection of funding into the system to prevent it from collapse.”

TOPIC: McDonald’s legally binding agreement with the Equality and Human Rights Commission (EHRC) to improve its handling of sexual harassment claims

COMMENT BY: Jo Mackie Director and Head of Employment Law at Lawrence Stephens Solicitors

“Many hospitality chains get it absolutely right. They respect their staff and enforce positive, respectful work environments in accordance with UK employment law. It is claimed that McDonald’s is facing over 1000 claims of sexual harassment from its staff, ranging from unwanted touching to indecent exposure. 

“If proven, this will be a failure of management which McDonald’s must deal with quickly if they are to avoid even more reputational damage. As the part-time low paid workers that McDonald’s thrive on tend to be women, it’s critical the business takes notice and acts quickly to protect its staff”.

TOPIC: The award by the Competition Appeal Tribunal (CAT) of follow-on damages in actions brought by Royal Mail and BT against DAF Trucks

COMMENT BY: Professor Suzanne Rab specialist competition law barrister, Serle Court

“The CAT has ordered DAF to pay approximately £17.5 million in damages to Royal Mail and BT. The case is a landmark judgment representing the UK’s first successful follow-on damages claim against a participant in the EU trucks cartel.

“The claims are based on the July 2016 settlement decision of the European Commission finding that certain EEA manufacturers of trucks were engaged in a cartel in breach of Article 101 of the TFEU over a 14-year period (broadly, 1997-2011).

“The Commission found anti-competitive conduct which consisted of coordination amongst the participating undertakings in respect of the EEA gross list prices for medium and heavy trucks.

“The claimants claimed damages in the form of the increased prices and lease payments that they paid for those trucks which were higher than they would have been without the infringement (the ‘overcharge’).

“The CAT found that DAF is liable to be assessed for an overcharge at 5% for both claimants on their value of commerce over the whole of the relevant period.

“The CAT rejected certain of DAF’s defences including as to resale pass-on.

“The CAT has invited the parties to calculate the damages including interest and tax based on its findings.

“The value of the overcharge found by the CAT is quite high given that the value of relevant trucks can range from £60,000 to £300,000 over the period.

“The ruling is likely to embolden other trucks cartel claimants whose claims remain to be heard and fuel the growing momentum of competition damages claims in the UK.”

CONTRIBUTED ARTICLES OF THE WEEK

Menopause reform: A missed opportunity? by Louise Skinner

With women aged over 50 the fastest growing demographic in the UK workforce, it is widely recognised that steps should be taken to improve the experience of those undergoing menopause at work. The UK Government recently published its response to the Women and Equalities Committee’s (WEC) report on “Menopause and the Workplace”, considering the need for potential legal reform.

Described as a “missed opportunity” by the WEC, the Government rejected a number of its key recommendations and focussed instead on encouraging employers to utilise existing best practice guidance to support employees.

The WEC recommended the commencement of Section 14 of the Equality Act which would allow discrimination claims to proceed based on a combination of two protected characteristics. Rejecting this proposal, the Government noted the ‘significant additional burden’ this would place on employers and potential unintended consequences beyond the WEC report’s consideration of dual discrimination claims based on age and sex.

It was also proposed by the WEC that the Government consult on making menopause a protected characteristic in its own right. However, the Government said that the existing legal framework is effective as employees going through menopause are already adequately covered by the three protected characteristics of age, sex and disability, and therefore a new protected characteristic is not necessary.

The Government agreed that the Health and Safety Executive and the Equality and Human Rights Commission should publish guidance on the legal considerations that employers need to consider when supporting employees experiencing menopause. This includes making reasonable adjustments where menopausal effects amount to a disability under the Equality Act. The Government has also committed to the appointment of a Menopause Employment Champion, who will provide a six-monthly report on progress made by businesses.

Although the Government has not agreed to produce model menopause policies, it acknowledged that employers and workplace colleagues should be educated about the symptoms of menopause and how they can support menopausal employees at work. The Government highlighted existing guidance on best practice approaches for employers and stated its intention that the new Menopause Employment Champion would collate best practice guidance and work with employers on implementation.

Although the scale of the initiatives backed by the UK Government falls short of the WEC’s recommendations, the consultation process has highlighted the legal protections that are available for menopausal employees, as well as steps that employers can take to improve the experience of menopausal employees at work. This includes implementing policies and training, encouraging open dialogue about the issues, and sign-posting employees to appropriate health and support services. These steps will be important in the short and long term to retain this skilled and experienced talent in the workplace.

Louise Skinner is a partner at Morgan Lewis

The impact of media reporting on the family Courts

by Victoria Cannon

With the introduction of the reporting pilot in the family court, what does this mean for children, their families, and the professionals involved in these cases?

In summary, from the 30th January 2023, if you attend the family court as a lawyer or expert, in Cardiff, Leeds or Carlisle, you could be questioned by the press and then quoted in a publication. The press can also talk to family members, in certain situations access case documents, and report on what they see in court.

However, it is important to note that anonymity of children and their families remains paramount, and the case judge will make it clear what material can be considered and quoted by issuing a transparency order case-by-case.

Cases concerning adoption cases, domestic abuse, HFEA and financial cases are not part of this pilot scheme.

In my view, it is clear why this change is needed. With proceedings behind closed doors, the justice system has been accused of being secretive and not transparent in their decision-making concerning children, and in some cases not acting in their best interests.

I believe a lot of this criticism is applied because people lack understanding about the family court, and in the majority of situations this is not the case.

However, the family court can make life-changing decisions concerning the children, and I believe the process needs to be more transparent about why certain decisions have been made.

Although there needs to be a fine balance in protecting a child’s anonymity and ensuring that the child remains protected. After all, these proceedings are in place to protect children. A judge can achieve this balance by being descriptive of what can or cannot be published, and by ensuring that only accredited journalists and bloggers attend court.

This pilot will hopefully instill more public confidence in the family law system and dispel any negativity arising from perceived beliefs of a surreptitious and archaic system. It will be interesting to see how it plays out in the family court.

Victoria Cannon is a Team Leader Partner at Stowe Family Law.

Monitoring employees at work: How far can you go legally?

by Andrea London

Despite the news that various large banking and insurance institutions are being fined crippling amounts for their excessive, inappropriate (and sometimes covert) nosing into what their employees are up to the use of employee monitoring software to track ‘hours worked’ and ‘work done’ remains surprisingly popular.

The current legal position regarding the monitoring of employees in the UK is – unfortunately- somewhat grey.  There is no express right for employers to monitor employees and yet no blanket prohibition on their doing so.   As a result – at the most basic level – there is significant tension between the employees right to privacy versus an employers right to protect its business.

Monitoring itself can include a vast array of activities, such as – for example – systematic email or message scanning, recording internet usage, analysing system access and usage, checking keyboard activity, remote screen access, recording phone or video calls, video recording, via CCTV or webcam, analysing GPS data from a phone and ‘algorithmic management’ (automatic processing of data, may include “nudges” if quotas missed etc).

What is imperative, from a legal perspective, is that employers can justify the use of any monitoring measures – since a lack of good reason and/or failure to consider alternative and less intrusive methods could ultimately be very costly from both a reputational and financial perspective. The fundamental legal point to note here regarding monitoring employees is that it can be permitted as long as any adverse impact on the employee is justified by the benefit to the employer.  Any monitoring must meet this essential test.   It is also of paramount importance that any monitoring is done in the correct way….

The European Court of Human Rights has stated that it is inclined to accept considerable monitoring or use of information about employees by the employer if this is carried out in pursuit of a legitimate aim which can be justified by the employer. For example, the employer has a right to protect their property from theft and to conduct monitoring in order to maintain the smooth operation of the business.

Employers who adopt an overzealous approach to monitoring their employees, or whose state-of-the-art software is doing more monitoring than the employees have been informed it is – place themselves at a significant risk of not only employment related claims such as breach of trust and confidence (leading to constructive unfair dismissal), but potential human rights claims and ICO enforcement action.  Given the downsides – employers should take are when deciding to implement such processes, as they could end up costing the business rather than assisting it.

Andrea London is a Partner at Winckworth Sherwood

LEGAL APPOINTMENTS OF THE WEEK

BAKER McKENZIE

Anthony Kay is joining Baker McKenzie in London as a finance partner. Previously with Orrick he brings significant experience and client relationships in the EMEA-wide syndicated lending and direct lending markets. He has particular expertise in advising private equity sponsors and their portfolio companies, corporate borrowers and lenders on their financing matters, with a focus on acquisition and leveraged finance and direct lending.

“During uncertain economic times, it is all the more crucial for us to build out our experience in special situations, distressed investments and restructurings.,” said Ed Poulton, Baker McKenzie’s London Managing Partner. “Anthony and his specialist skillset will be a huge asset to an already strong and talented team within our Banking and Finance practice. “

Baker McKenzie’s Banking & Finance team provides integrated English and New York law advice to sponsors, corporate issuers, investment banks and private credit funds on leveraged finance transactions. Kay’s hire bolsters the continued growth of the firm’s leveraged finance offering, which covers a full range of bank and bond financial products across industries and jurisdictions, supported by its global network of offices.

DAWSON CORNWELL

Hilka Hollmann is joining Dawson Cornwell in London as a family law partner specialising in children, adoption, and surrogacy law. Previously with Freemans she has nearly two decades experience of family law and has been involved in some of the most high-profile and important cases before the High Court and Court of Appeal. She is an expert in all facets of domestic and international children law, including complex cases frequently involving extremely serious allegations. She has represented children in complex care proceedings with an international dimension and also has extensive experience in cases relating to sexual abuse and radicalisation.

Hollman is on the Law Society’s Children Panel, is an accredited Resolution specialist lawyer for Child Abduction and Adoptions and co-authored Resolution’s response to the Law Commission’s consultation on proposed changes to surrogacy law in England and Wales. She has been ranked in Chambers for the past six years for her expertise in children matters.

“The success and growth of Dawson Cornwell’s Children Department is extremely impressive,” she says, “and the knowledge and expertise in family law across the Firm is second to none.”

E- VENTS

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