22 09 2009

The blog will be down for a little while today while I have some upgrading work done to it.  When Jobsworth returns it will also sport a new look, so please be sure to come by and take a look and let me know what you think.

Thanks for bearing with me.


Best Regards


Michael Scutt


Latest News

18 09 2009

Employers have to repay sick pay

Some good news for employees came out last week with the decision by the European Court of Justice in Pereda v Madrid Movilidad SA that says if an employee is sick whilst on holiday, they can retake the holiday later on or carry the days lost over to the next year. 

Not surprisingly employers’ representatives are unhappy about it as it places additional burdens on them.  It also increases the risk of unscrupulous employees taking advantage. No guidance is offered by the ECJ on how this could be policed.  Employers can only insist on a sick note from GPs after seven days absence. 

Costs Awards in Tribunal

A while ago I wrote about the case of Daleside Nursing Home v Mathew    which dealt with the issue of when costs should be awarded against a party by an Employment Tribunal.  A recent case has now followed that decision.  In Dunedin Canmore Housing Association Limited v Donaldson, a case before the Employment Appeal Tribunal (EAT) in Edinburgh it was held that the Claimant (who was representing herself) had lied under oath and the Tribunal should have awarded costs against her.  In particular the Honourable Lady Smith said;

The issue was not whether a lay person could reasonably have been expected to understand the law.  It was whether she had or had not, in simple human terms, approached the essential factual matters that lay at the heart of her case honestly and reasonably.  She had not done so and these are exactly the sort of circumstances where a Tribunal has a responsibility to make clear that it is quite unacceptable to cause expense to another party by bringing proceedings on that basis.

Be warned!


Notice Monies and Constructive Dismissal

Here is some good news for employers.  The Court of Appeal (CA) has recently overturned the EAT’s decision in Stuart Peters v Bell  which had said that an employee who claimed constructive dismissal from his employer and then went on to work for another  employer during the notice period they would otherwise have served did not  have to give credit for the monies earned.  This has been the law, since 1972 case of Norton Tools v Tewson.  Effectively the employee could get his salary twice for that period, which was something of a windfall for him.  That has now been overturned by the CA, but only insofar as constructive dismissal cases are concerned. So, if an employee claims constructive dismissal, leaves the employer without serving their notice and finds alternative work elsewhere, the employer won’t have to pay the notice monies due to the employee during that period.

 Norton Tools is still good law in other respects and hasn’t been completely overturned.

Please contact me on 0207 464 8433 or email me at if  you require further advice.

How (not) to sack someone

14 09 2009

As an employer, if you want to avoid your name appearing in the Metro or any of the other free papers, try to avoid sacking employees suffering from cancer by email.  This is the moral from the recent report concerning Melinda Bolnar, a 27 year old teacher suffering from bowel cancer and who had just endured seven months of chemotherapy and given a 30% chance of survival.  According to the report it is alleged that her private school sacked her by email.  I should point out that the case is due to be heard at an Employment Tribunal later this year and the above report are merely the employee’s allegations against her employer and not the proven facts.

The report probably doesn’t give the whole story but it certainly gives the impression that Melinda was sacked without any form of disciplinary or capability procedure.  If that genuinely is the case the school might find themselves in difficulty when the case does reach the ET.

So (assuming that is what happened) what should an employer do if it wants to terminate the employment of an employee suffering from long-term illness?

The first and most important question is why should the employer want to terminate the employee’s employment?  This will be at the heart of any subsequent litigation that may arise.  The usual answer given by employers is that they could not afford to keep the position empty whilst the employee was away or that temporary cover could not be extended indefinitely.  Much will depend upon the role performed by the employee and the extent to which it is reasonable for the employer to reach the conclusion that dismissing the employee was reasonable in all the circumstances.  The size and resources of the business will be important too. What action might be reasonable for a small employer to take will be greatly different from a multi-national PLC or, for example, the NHS. How the employer treated other staff in similar circumstances on other occasions will be relevant: what are the contractual sick pay provisions, if any?

There are only a limited number of grounds on which dismissing an employee will be fair.  They include capability to do the job.  This can mean lack of ability of the employee to fulfil their role (i.e. incompetence) or it could include inability to do the job through sickness.  Problems can arise for an employer when the employee takes lots of short periods of time off sick (whether genuinely or otherwise) but when, as in the type of case under discussion here the employee is off for weeks or months.   

A prudent employer will properly investigate the reasons for the employee being absent and will try and establish when they might return.  This will need to be done with sensitivity and tact, which means good communications between employer-employee are going to be vital to make this work.  It will probably need medical evidence to be obtained and a well-drafted contract of employment should include a clause which allows the employer to send the employee to a doctor of its own choosing.  If the medical evidence suggests that the employee will be fit to return to work, even if on a gradually stepped basis at first, in a fairly short space of time, the business will need to think long and hard before dismissing.  On the other hand, if the absence looks like being lengthy then the employer may be justified in bringing the employment relationship to an end, provided it does so on grounds of (in)capability.

Where difficulties arise (as in Melinda Bolnar’s case) is where the employee feels there are other grounds for dismissal.  The Metro report states that she is suing for disability discrimination.  Much will depend, as usual, on who said or did what and when.  To avoid difficulties of this sort an employer needs to act clearly and openly about what it is doing and why. 

It needs to follow a proper process, as laid down by the ACAS Code of Practice introduced this April. In brief this means the employer investigating properly, inviting the employee to a meeting to discuss the issues, allowing them to be accompanied by a work colleague or Trade Union representative and to make their point.  Finally, the employee should be informed of their right to appeal the decision if it goes against them.  If the employer gets it wrong they can not only face a claim for unfair dismissal (with the potential for the award to be increased by up to 25% if they are deemed to have acted unreasonably) but also a claim for disability discrimination.  Claims under the DDA are not capped at the £66,200 maximum compensatory award, as with unfair dismissal cases.

Of course, all the above leaves aside the moral issue of whether it is the right step to take but and Courts/Tribunals don’t make judgments on moral grounds: the newspapers do that.

If you are an employer or employee requiring further advice on any of these issues, please get in touch with me at or on 0207 464 8433

Product vs Service

11 09 2009

Completing Tesco Law week here on Jobsworth, I  thought I would comment on a very interesting post that I read on the “DirectLawUK” blog a couple fo days ago.  The central point of the piece was that solicitors have to recognise the difference between a “product” and a “service”.  On this thesis, clients want a product whereas solicitors provide a service.  With appropriate use of technology solicitors can work more  efficiently and thus provide a cheaper service and the firm that can do both will be successful.  I think this is too simplistic.

The problem is that the cost of the service is open-ended, whereas a cost of a product is fixed and what clients want is certainty over how much they are going to pay.  It is a dichotomy that goes right to the heart of the relationship between solicitors and their clients and is at the heart of the debate over Tesco law. 

In terms of commoditised products (such as wills and conveyancing) solicitors are providing a product and that is why so many practitioners are concerned at being wiped out by the introduction of ABSs.  The only way that the High Street firms can compete is on quality, especially where the client’s requirements are non-standard (i.e. with high value estates or non-registered property).  Where the analysis becomes very challenging though is in respect of litigation where it is very difficult to give a fixed price estimate at the outset of the matter.  Can a piece of litigation be defined as a “product”?  With the exception of low-value RTA work and, maybe, some employment law cases, litigation can’t really be commoditised. Each case rests on its own facts and the best way to pursue it is with people who know what they are doing.  Human beings cost money, especially if they are experienced.

Can Tesco law change that? Potentially by outsourcing the fee-earners to South Africa or India, but is it feasible to have your County Court divorce handled by someone based in Cape Town or Mumbai?  What might alter the terms of the debate is if Lord Justice Jackson’s Report on Civil Litigation costs recommends an end to the cost-shifting rule whereby the winner gets his/her costs paid by the losing party.  At the moment the only reason I can see Tesco law wanting to get involved in litigious work is if they can do it more cheaply using economies of scale and make a greater profit on the amount recoverable from the loser.  If the paying party becomes the client in all cases will that business model be quite so attractive?

I’ll be writing further pieces on Tesco Law over the coming weeks, so please do link to the blog or opt into the RSS feed for updates.  Next week I’ll be back on employment law.



Can social media save solicitors?

10 09 2009

In my last post on this topic I argued that the introduction of Alternative Business Structures (ABSs) does not have to entail the destruction of the smaller firms in the legal profession, although it undoubtedly poses a very severe challenge. 

High Street firms without a recognised “brand” of their own haven’t got the financial resources to compete with the massive advertising budgets of the banks and supermarkets.  Firms or, more particularly, individual solicitors themselves, have only their own skills and personality to sell.  Word of mouth recommendation is well recognised as the best form of business development and that will never change.  What will change is that social media will allow firms and individuals to promote themselves beyond the confines of the spoken word of mouth networks.  In particular it is likely that websites will develop which will allow users to rate their solicitor; think TripAdvisor, but for lawyers.  It must only be a matter of time before such a site develops.

Alternatively networks will (and are) appear which act as umbrellas for “quality-checked” firms – we’re seeing that with, Contact Law (who are “badging” their service via the Daily Telegraph) and to name three.

It will then be very important for lawyers to control their online identities and to promote themselves in the virtual world.  We all know how “googling” has become a verb and not just a proper noun.  This trend will continue as the general population becomes more tech-savvy.  All practitioners will require a digital media strategy (Tesco law will have one).  Anyone reading this blog probably has a pretty good idea of web 2.0 and social media but, for the sake of completeness, this is what I think a digital media strategy is;

  1.  A good website, properly designed, utilising SEO techniques.
  2. A blog – probably a personal rather than a corporate one displaying wisdom and personality (like this one really!)
  3. Use of Facebook et al.  Facebook has “Pages” that allow businesses to promote themselves.  It also has about 245 million users worldwide.  Facebook has overtaken MySpace in importance.
  4. Twitter!  Play with it for a while and you will see its uses.
  5.  Linked-In et al – of most use to recruitment consultants at the moment but that will change.

None of this will replace good old-fashioned networking in the real world or will surpass the joys of an old-fashioned lengthy lunch (some of us still do it and I’m always open to invitations) but it will complement it. 

As usual, all comments welcome.

Extra-Mile Charity Loire Cycle Challenge 2009

8 09 2009

My friend Richard Gordon is taking part in the above cycle challenge later this month to raise funds for St Francis Childrens’ Society in Milton Keynes, as well as the RNLI, Prostate Cancer Charity and a local charoty called MK Snap for people with special needs.

They have committed to cycling (in relay) 500 miles through and around the Loire.  Donations can be made via this address

Good luck guys!

What way forward for Solicitors?

7 09 2009

Last week I gave a talk to solicitors and practice managers at a workshop addressing the issues arising from the Legal Services Act 2007 (“LSA”) and, in particular, what the implications of the so-called “Tesco law” will be for firms.  There was some good discussion between all the delegates and there have also been some interesting comments left on the earlier post I wrote on the subject.

The LSA or, to be more precise, Alternative Business Structures (ABSs) will mean different things to different people, depending upon where you are positioned in the profession.  For instance, the Magic Circle firms will not be at all concerned by the prospect of “Tesco law” offering wills and residential conveyancing as they no longer do that sort of “private client” work. They probably have no need for external injections of capital from non-lawyers either.  They are, however, concerned that other legal markets will remain tightly regulated and will not be able to enter into multidisciplinary partnerships in the US, for example.  Smaller law firms who are not interested in cross-border work may well welcome the opportunities that private equity can provide – perhaps to fund an upgrade of IT systems as one delegate suggested to me.  For firms that are prepared to dilute the partner’s/member’s ownership by allowing in non-lawyers the introduction of ABSs is potentially exciting. The message that came through is that Tesco Law offers opportunities to these sorts of firms.

There was consensus though that for the smaller law firms, based on the high street and relying on “commoditised” legal services (e.g. wills/probate and conveyancing) for their bread and butter, Tesco law is a threat.  All delegates were sure that high street firm of solicitors as we now know them offers a quality service to clients but competing with Tesco law on price grounds alone would be an unwinnable battle.  Many high street practitioners face the future with dread. 

I don’t think this necessarily has to be the case, particularly for practitioners undertaking non-commoditised work (by which I broadly mean family disputes, all litigation apart from lowish-value road traffic accident personal injury claims and anything with any emotional involvement in for the client).  Clients are increasingly price-sensitive but they also want a quality service: the “dial one for wills. Dial two for conveyancing and dial 3 if your ex-partner won’t let you see the kids this weekend” type approach just won’t work for most people. One of the respondents to my earlier post, John Flood suggests this may be too complacent though – what will happen if Trade Unions, who are used to funding personal injury litigation, decide to get involved more directly and either buy into a law firm or set up a new business structure with a Citizens Advice Bureau or Law Centre? I think that is a good point albeit I can’t see that a Trade Union would want to get involved where it couldn’t recover its costs from the losing party.  In other words they may be happy to fund personal injury litigation but not a bitterly fought costly residence/contact dispute between parents. 

Clients  may initially want to adopt a Tesco law solution but they won’t do so again if the service they get is cheap and unimpressive.  Many of the delegates at the workshop made the point, strongly, that the potential clients using Tesco Law in the first place (before getting disillusioned) would represent a huge loss to the profession.  I agree and, in my view solicitors need to be promoting themselves much more pro-actively to compete against this.

 Change is on the way and it doesn’t necessarily have to mean the destruction of the profession.  I will suggest how they can do that without utilising massive financial cost in my next post.  As ever I would welcome your comments on these issues; please feel free to let me know what you think, or email me directly at or phone on 0207 464 8433   

Things employers shouldn’t ask …

2 09 2009

Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family.  Nor should they now ask potential employees how old they are.  The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years.  The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies.  However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement.  The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”. 

The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds.  I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time.  He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed.  The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.

Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.

Amnesty in trouble

1 09 2009

There are some things you just don’t expect to come across, like good weather at Bank Holiday weekends for instance, or Amnesty International being found by the Employment Appeal Tribunal to have discriminated against one of its employees on the grounds of race.  Yet that is what was found to have occurred in the case of Amnesty International v Ahmed that was reported recently. 

It’s an interesting case and not just because of the involvement of Amnesty in it. It states that the motivation of the employer in taking the action it did is irrelevant if the action taken is discriminatory in itself.  In this case Amnesty refused to appoint Ms Ahmed, a Sudanese lady, to be its Sudan researcher because it perceived there to be two potential difficulties with her appointment.  Firstly it was concerned that her impartiality might be called into question, especially given the sensitivity of the conflict in the Darfur region and because she was from north Sudan. Secondly,  Amnesty was worried for her safety and those working with her because of her nationality.  Consequently it decided that she should not be appointed to the role, despite the fact that she waa the best qualified for it.  A claim for race discrimination followed and Ms Ahmed succeeded.  Amnesty was held to have directly discriminated against Ms Ahmed on grounds of her racial origins.

A further argument by Amnesty that to have sent Ms Ahmed to Sudan would have caused them to breach health and safety law was not accepted by the EAT. 

The lesson for employers here is that any steps that might discriminate against an employee on the grounds of race (or sex) even when, as in this case, there might be seemingly sensible or benign reasons behind the decision, may well amount to discrimination.  Employers beware!

Thanks to Daniel Barnett’s case law update for bringing this to my attention.

Free Employment Law Resource

24 08 2009

I am delighted to announce that I will be writing the Employment Law resource on Insite Law, the online legal resource page run by Charon QC.  It is designed to be an online textbook, with hyperlinks to cases and to be capable of being updated regularly so that it remains current.

It is part of his initiative  to get more legal materials online, for free.  It is anticipated that the resource will be of most use to students, but it could also be helpful for practitioners in other disciplines who just want a quick introduction.  I have volunteered to cover employment law and am just in the process of getting started. It’s a daunting prospect at this stage as there is a lot to cover but, when finished, I hope it will be useful to readers and also complement the issues raised in this blog.  It will be published in instalments, which is just as well as I don’t fancy writing 300 pages by the end of the month.

Click here for a link to Charon QC’s announcement and for more on the project as a whole.  Charon QC has covered the law of contract and the law on Sale of Goods.  He is also writing on Tort.  Other contributors, like  Peter Groves of the Ipso Jure blog writing on Intellectual Property, have also come on board.  Hopefully most areas of law will be covered in the fullness of time.